172 P. 477 | Utah | 1918
Plaintiff commenced this action in the district court of Salt Lake County to recover damages against the defendant for breaching a written contract entered into between plaintiff and the defendant on the 5th day of August, 1915, for the exchange of real estate.
So far as material here, the contract provides: The plaintiff agrees to exchange certain real estate known as the “Rampton Building” on Main Street, Bountiful, Utah, for 220 acres of land, commonly known as the “Mule Ranch,” in Corinne precinct, Utah. Plaintiff assumes a mortgage of $6,500 on said Corinne property. Defendant assumes a mortgage of
It is alleged in the complaint that the plaintiff on and prior to January 1, 1916, made, executed, and tendered to the defendant a good and sufficient conveyance of the property to be by him conveyed to defendant under the contract, and the plaintiff’s ability, readiness, and willingness to perform and carry out any and all covenants as in said agreement provided he shall do; that the defendant on and prior to January 1, 1916, and ever since, has wholly failed, neglected, and refused to make, execute, and deliver to the plaintiff a deed of conveyance as in said agreement provided for, and that thereby plaintiff has suffered damages in the sum of $10,000; that plaintiff has in reliance upon the said contract expended $50, for all of which judgment is prayed, including interest and costs of suit.
The answer admits the execution of the contract; affirmatively alleges, as a defense, that the contract was not intended to be final between the parties; that the time the contract was signed an oral agreement was entered into between the parties that plaintiff should examine defendant’s property and, if found satisfactory, then the parties should draw a final contract containing terms identical with those orally agreed upon and the former written agreement should become null and void. The answer also alleges fraud and misrepresentation on the part of the plaintiff; that the contract was signed through mistake and inadvertence on the part of defendant ; and denies that plaintiff has sustained any damage. The reply denies the affirmative allegations of the answer.
The trial was to a jury, and the issues found in favor of the plaintiff. Judgment was entered accordingly. Motion for new trial was made and denied. Defendant appeals.
On appeal defendant has assigned thirty-six errors. In his
“ (A) That no complete binding contract was executed by plaintiff ánd defendant. The document upon which suit is brought was only an option for á contract. * * *
"(B) That the certifying of plaintiff’s abstract down to daté and the delivery of the abstract was a condition precedent tó be performed by plaintiff before plaintiff could put defendant in default. * * *
"(C) 'That both parties- failed to perform their alleged covenants in the document sued upon within the time stipulated’. * * *
"(D)- That plaintiff was not on the 1st day of January, 1916, of at any time prior to the time of bringing his suit, ready to perform' his alleged agreemént with defendant. * * *
"(E) And that if there was a valid agreement and it was breached by defendant, plaintiff sustained only nominal damages.”
We have reviewed the testimony, as disclosed by the record,with care, and we find testimony wás received pro and con and submitted to the jury under instructions of the court bearing óú each one of the foregoing propositions of thé defendant. Some of the testimony, we think, was
Tbe court instructed tbe jury as follows:
“ (21) If you find tbe issues in favor of tbe plaintiff, then you are to assess bis damages in sucb amount as will fully compensate bim for any losses sustained by reason of tbe failure of the defendant to perform tbe terms of said contract.
“In estimating the damages, you are to take into consideration the increase in value, if any, of the Mule Bancb, between August 5, 1915, and January 1,1916, or tbe decrease in value, if any, of tbe Bountiful property between tbe 5th day of August, 1915, and tbe 1st day of January, 1916, or both; also, any necessary expenses to which tbe plaintiff was put by reason of tbe default of tbe defendant in making preparation for tbe carrying out of tbe contract on tbe plaintiff’s part, not exceeding tbe sum of $10,050.”
The defendant complains that tbe trial court, by tbe first paragraph, in effect told tbe jury that it was their duty to assess damages against tbe defendant, without leaving it for tbe jury to determine whether the plaintiff has sustained damages, and if so bow much, citing in support of his
The second paragraph of tbe instruction complained of by plaintiff, wherein tbe court told tbe jury that, “in estimating the damages, you are to take into consideration the increase in value, if any, of tbe Mule Bancb, between August 5, 1915, and January 1, 1916, or tbe decrease in value, if any,
Conceding the instruction under consideration to be erroneous in that regard, yet as we have pointed out, the first paragraph was proper and correctly stated the law. The exception taken was to the instruction as a whole, and therefore, for that reason, was insufficient and must be
(b) As we view the record, there was ample testimony produced at the trial, in plaintiff’s behalf, to support the verdict and judgment for the amount rendered.
Some of the witnesses testified that the ranch lands near Corinne were worth twenty per cent, more on January 1, 1916, than when the contract for exchange was entered into; others testified that the business property at Bountiful had, on January 1, 1916, decreased in value from
What we have said in regard to the complaint of the defendant as to the damages .awarded plaintiff being excessive also applies to many of the alleged errors assigned by the defendant on this appeal. The verdict of the jury precludes our reviewing them on appeal.
After review and due consideration of the entire record, we have been unable to find any reversible error assigned on the appeal. Therefore it is ordered that the judgment ,of .the district court .be affirmed. Costs to plaintiff.