Orr v. Rich
5 Utah 519
Utah
1888
Check Treatment
B OREM an, J.:

On the 7th day of March, 1879, the defendants (respondents) and the plaintiif (appellant) had an agreement drawn np, wherein the defendants and one William G. Bydalch were named as the parties of the first part, and the plaintiff was named as the party of the second part. The agreement was signed by the defendants and by the plaintiff. Bydalch was not present and did not sign it. In this shape it was left with one Thomas Williams. Bydalch’s name was never thereafter signed to it. The purport of the agreement was that the parties of the first part agreed to sell to the party of the second part a certain piece or parcel of land, the consideration being $2,000. The consideration was to be paid in live-stock, at specified rates of value, and to be delivered at a specified place, and if any of the stock, not exceeding $500 in value, should npt be delivered by the 1st of September, 1879, the party of the second part was to give a note for such unpaid sum, drawing six per cent, interest per annum. Stock to the value of $1,568 was delivered within the time, leaving the sum of $432 unpaid on the 1st of September, 1879, and to be paid thereafter, and for which a .note was, under the contract, to be given. According to the findings not excepted to, the sum last named was never paid or tendered to be paid. The parties not having reached any settlement or conclusion as regards the further performance of the agreement, the plaintiff on the 6th of May, 1885, gave notice to the defendants that the contract was rescinded, and that he had vacated the premises which he had held possession of from the time of making the contract, and he demanded a repayment to him of $1,600, and interest thereon, in all amounting to $2,500. The reason stated in the notice for the rescission was that the defendant had failed to convey or caused to be conveyed to the plaintiff the land in question. On the same day a deed, dated 15th April, 1885, and signed by the defendants and by Bydalch, was shown to the plaintiff, and *522be declined to receive it, because it was not acknowledged, and for other reasons. Subsequently, on the 20th day of May or of June, 1885, the same deed, with notary’s seal to the acknowledgment, was tendered to him, but it was also declined, on the ground that it was too late, as he had removed from the land and rented another place, and the contrae^ had been rescinded. Thereafter, in September following, the plaintiff instituted this action. Trial being-had before the court, a jury having been waived, judgment was rendered for the defendants. Á motion for a new trial having been made and overruled, the plaintiff has appealed to this court from the judgment and from the order overruling the motion for a new trial.

The plaintiff assigns as error the making- of the third, fourth and fifth findings of fact, as being unsupported by the evidence. We have examined the evidence with care, and find that there was a substantial conflict of evidence on each of the points set forth in the findings. If we should take the evidence in behalf of the plaintiff alone, then of course the findings would be wrong, but this cannot be done. We must take the evidence introduced upon both sides, and then upon the well settled rule (often recognized in this court) if there is a substantial conflict of evidence, this court will not disturb the decision of the court below upon the assumption that it is not supported by the evidence. It is the policy of the law to leave questions of fact very much in the hands of juries, or of the court sitting as a jury, and unless the appellate court can see that the facts proven are very strongly against the verdict or decision, and there is no substantial conflict, it is not justified in holding that there is not evidence to support such verdict or decision. The appellant alleges that the lower court erred in holding that the plaintiff did not, on the facts of the case, rescind the contract. The appellant in his brief lays down the rule to be that “while the law requires consent on both sides to a rescission of a contract, the conduct of the defaulting party may and is often such as only requires the concurrence of the other in order to a rescission. In such a case, only one party takes affirmative action, but it is because the acts of the other imply an abandonment of *523the contract.” We believe that this language, with tbe assumption that tbe rescinding party is not in fault, presents tbe correct rule. Let us apply it to tbe facts in tbe case at bar. There is no proof of tbe express consent of tbe defendants to tbe rescission. Tbe question arises, then, whether tbe conduct of tbe alleged defaulting party implies an abandonment of tbe contract on their part. This is not an exception to any finding of fact, but an exception to tbe tbe conclusion of law that “the plaintiff is not entitled to recover.” That conclusion is based upon tbe findings of fact, and the findings of fact are supported by tbe evidence, as we have already seen. To ascertain therefore, whether tbe bolding that tbe plaintiff did not rescind is correct or not, we cannot go behind tbe findings, but must take them as a basis. In looking into tbe findings, we ascertain that tbe defendants were always ready and willing to perform their part of tbe contract, and bad not abandoned it, and that tbe plaintiff was in default in not having performed bis part of tbe contract. There was therefore no abandonment of the contract by the defendants, and there was no “consent on both sides to a rescission.” It is alleged as error that tbe court below failed to find on tbe allegation as to tbe surrender of tbe premises. Tbe contract of sale was- silent as to tbe possession of tbe vendee, and, as a consequence, be was not entitled to tbe possession. Burnett v, Caldwell, 9 Wall., 290. There was therefore no necessity for a finding upon that point. If be was not entitled to the possession until a completion of tbe contract, bis possession and bis subsequent surrender of possession could not effect tbe question as to tbe rights of tbe parties. It is alleged as error also that there was no finding as to tbe truth of tbe affirmative matter set up in tbe answer. It is assigned for error also that the court admitted evidence as to tbe value, and decrease in value, of tbe premises, and as to waste. These alleged errors belong to tbe same class. Tbe court below in its findings and' decision, seemá to have taken no account of tbe affirmative matter in tbe answer, nor of tbe waste, nor of tbe value, nor decrease in value, of tbe premises. Tbe errors of tbe court, if such existed, were harmless to the plaintiff. They did not work *524to bis injury or damage. If sucb errors existed and could bave worked to tbe detriment of the plaintiff, tbey would be ground for reversal, but where they clearly could not have done so, they would not authorize a reversal. It is assigned for error that the court below admitted defendant Wrathal to testify that he was still ready to deliver the deed, and that he was willing that it should be delivered. No point is made on this alleged error in the argument set forth in the brief of the appellant, and we do not deem it material. It was not improper that the defendant should say that he was willing that the deed should be delivered. It tended to show good faith in now being willing to carry out the contract. It is finally assigned as error that the court below permitted John Eydalch to testify as to a conversation he had with one Anderson, who had charge of sheep belonging to plaintiff. The testimony was that Anderson stated that he did not bave any sheep of the plaintiff of the kind described. The evidence was of very little importance. The plaintiff had sold the sheep which he had on the previous day offered to defendant Eich. The court found that the plaintiff never offered to make payment of the balance of $432, which it was claimed the plaintiff offered these sheep to pay, and this finding of the court is not excepted to. If there was any error therefore it was wholly immaterial. We see no reason for a reversal of the decision of the court below, and we can see no harm to result to the plaintiff, as the defendants claim to stand ready to complete the contract. The order and judgment of the court below are affirmed.

Zane, C. J., and HENDERSON, J., concurred.