438 P.2d 540 | Utah | 1968
Appeal from a no cause of action judgment in a case having to do with an agreement looking to the lease or purchase by plaintiff from defendants of oil shale properties. Affirmed in part and reversed in part. No costs awarded.
This action was initiated under Chap. 33, Title 78 of the Utah Declaratory Judgment Act, and Rule 57, Utah Rules of Civil Procedure. The complaint attaches a copy of the instrument to be construed, claiming certain rights thereunder, and praying that the court adjudge the rights of the parties.
Ordinarily, under the statute, the instrument under which someone wishes to have the court resolve doubts arising from the language used, is simply a matter of law to be decided by the court from the wording thereof. However, under 78-33-9 of the Act, if there be an issue of fact involved, it is triable as in other cases. That is the case here. Most of the record deals with facts based on highly question
However, there is a paradox in this case that needs treatment. The trial court held that the agreement to agree was not specifically enforceable. Part of such unenforceable agreement was a provision for payment to defendants of $20,000 upon firming up to the anticipated contract, which defendants said was payable within a six-month option period beginning on July IS, 1963. The $20,000 was paid after this six-month period, assuming defendants to be correct. Difficulty is that defendants’ whole case was bottomed on the theory that the contract was unenforceable because of lack of specificity of terms, which theory the trial court bought, and which we buy. But defendants urged that they could retain the $20,000 payment under the terms of the very contract which they insisted was not enforceable, which theory the trial court bought and which this court cannot buy.
We affirm the trial court’s decision as to non-enforceability of the contract and reverse its decision as to defendants’ right to retain the $20,000, — particularly in view of the fact that defendants’ counsel, during the trial offered to return the $20,000, if the court would grant the defendants’ motion for dismissal.
The case is remanded with instructions to modify the judgment in consonance with this decision, including a decree requiring repayment of the $20,000 mentioned together with interest at the legal rate from time of payment thereof.
. We take it that the complaint referred to subsection 2 (78-33-2, U.C.A.1953) which says “Any person interested under a deed, will or written contract * * * may have determined any question of construction or validity arising under the instrument * * * and obtain a declaration of rights, status or other legal relations thereunder.”