*1 аnd the cause is reversed judgment con- proceedings further remanded herewith.
sonant appellants.
Costs SMITH,
McFADDEN, TAYLOR FELTON, J., concur. D.
JJ., and P.2d 434 Suchan, hus Blanche SUCHAN
Anton Plaintiffs-Appellants, wife, band and Ruther Beulah H. RUTHERFORD
C. wife, ford, Defend husband ants-Respondents.
No. 9608.
Supreme of Idaho. Court
Jan.
Rehearing 7, 1966. Denied Feb.
Rayborn, Rayborn Rayborn, & Twin Falls, appellants.
Hepworth Buhl, Nungester, & for re- spondents. *4 around. The car and looked
got out of inspected house the tenant plaintiffs then farm, which including the basement on earth, leaving unfinished dug into the was exposing the formation some wall areas soil, consisting of 18 inches of below gravel ob- lay and rock. Suchan admitted exposure soil formation serving was and that Rutherford had said there house, some rock north of the on the east forty. He testified he observed a also prop- edge canal ditch at the east erty; it he realized could not used TAYLOR, Justice. irrigation part оf that of the farm because George Baxter, August, slope land, and assumed was plaintiffs (ap- agent, interested real estate used aas drain ditch. testified he Baxter purchase acres of of 80 in the pellants) representation any did not make untruthful (respond- by defendants farm land owned concerning farm; that he did not tell 25, 1964, plaintiffs, with ents). August it; plaintiffs there was no rock on and that Baxter, through 40 acres the west drove good thought he them told he it was a farm inspection property. an tour on were, with rocks. they few Plaintiffs admit this oc- testified that on Plaintiff Suchan land, advised there were a on few rocks Baxter, he much rock сasion asked “How all confined two small areas. replied, “There Baxter there?” inspection premises After the no That’s one of best 40’s rock. August 25, on plaintiffs and defend- country.” that he did He also testified agreement ants executed a written for the inquiry make as to existence of rock plaintiffs sale defendants to the' upon 40; irrigation the east that he saw purchase agreed price acre farm. The was ditches, weeds, which covered with crossed $39,000 $1,000 money” of which “earnest approximately dividing line the farm at paid upon was agreement. execution of the tracts, two 40 but did between the acre he $38,000 provided balance of to be were, they not know ditches whose ' paid as follows: inquiry ownership made no as to the therefor, they “$10,500.00 thirty days; $2,500.00 the easements assumed on year were the Rutherfords’ ditches. He further of each paid. Pay- until Jan. Baxter) they (plaintiffs applied testified that ments to be first on interest *5 principal. on then balance Interest to nondisclosure rights, of the ditch by held $Y2% beginning 1965; others, be Pur- across the land. Defendants Jan. pay (}4) chaser is to third allowed answer the allegations denied fraud paid per year if balance until the and nondisclosure and counterclaim right prefers. he Purchaser has sought a specific per- decree requiring repairs property enter to make outside agreement by formance of plaintiffs, or, do farm before and to work alternative, in the specific perform- if 11/10/64.” decreed, ance could not be that defendants having August 27th, plaintiffs, heard On given $8,000 a judgment for rock through neighbors there was on for breach of the contract. they farm, Baxter would not informed August they met place. 29th take On 4, 1964, November the cause was tried the con- reaffirmed with Rutherfords and court, sitting jury. without Find- 9th, hearing September fur- on tract. On ings fact and conclusions of law were land, plaintiffs on ther stories rock by stipulation waived parties and September On abandon the deal. decided to judgment was entered in favor of the de- inspected property in 24th Mr. Suchan fendants and against plaintiffs spe- for Hejtmanek, a company Edward of one cific contract, fol- as County field for Falls Weed man the Twin lows : Department. there He then learned plaintiffs’ “1. complaint That be dis- who had neighboring are farmers three missed. way rights across for ditch easements property farm, and that the rock on “2. agreement That set forth operation prevent
was smooth sufficient in the proved counterclaim and in this machinery the land. On that date his on specifically performed cause be and that plaintiffs gave notice to the sellers written the defendants and counterclaimants on the contract their rescission of plaintiffs have recover from the grounds representations as to fraudulent defendants, and counter the sum of property, and on the amount of rock $10,500 paid such sum be im- others, rights of of ditch nondisclosure mediately the defendants and coun- property. across the plaintiffs terclaimants and coun- 2,1964, plaintiffs provided commenced this ter defendants as for in the October agreement plaintiffs action the rescission оf the contract and that the for thereon, $1,000 pay paid counter the return of the defendants the balance representation purchase price provided alleging at the times fraudulent agreement.” premises and , the of rock for under the terms of said amount on appeal They brought rely upon from the so was do fraudulent. Plaintiffs Lanning, assigned the dismis- Idaho judgment and as error 390 P.2d Janinda entry of complaint distinguishable That and the case sal their per- from There judgment against them this. the contamination of the supply, water property for the residential of the contract. formance involved, not a condition which the *6 waived, findings are were we Since prospective purchaser by could observe in- upon the of the facts Also, not advised spection premises. of the case in that that conclusion the court its prospective buyer based inquiry, through the made by means procured induced or had not been agent seller, purity the of the as to the of part of defendants. fraud on the of supply. response the water in- to such findings that no support evidence would quiry buyer the failed reveal to the seller to either representations made were fraudulent that had seller been advised that agent as by Baxtеr the defendants their or water was contaminated. reference of farm with
to condition plaintiffs did not and that to “rocks” also ap case In this the ditches were in upon any representations made that rely parent plaintiffs’ and casual observation upon own regard, they that relied their plaintiffs did observe them. The existence premises. inspection of the investigation and through by of three ditches located side side strip farm, occupying a center of right way easements As ditch of to the wide, to an of land 40 feet would indicate by others, there established that held experienced farmer there wеre more farm, the crossing were ditches three be re ditches in that location than would neighbor- rights way belong for which irrigation property quired for the of the ing crossed farmers. Three such ditches them, by put a traversed such would there- approximately the center farm inquiry ownership upon farmer occupying strip land 40 feet wide. plaintiff thereof. It was established that weeds, ditches by these Although covered and had lived and Suchan was farmer by plaintiffs. were Plaintiffs observed tenant, engaged farming, in Twin in as a by inquiry advised made and were not no county years. Falls He had lived ownership agent or their defendants year in which the onе in the same section way therefor. rights ditches or the also Rutherford farm was located. It was duty of that it was the Plaintiffs contend plaintiffs with the shown that were familiar them agent inform defendants and their irrigated in Falls fact in the area Twin . thereof of such ditches and of the burden (cid:127) county ownership farmer of upon property, failure to that their n neighbor- Contracts; right across a ditch or easement Restatement Com- § farm, thing. common In such ing was a ments a c.
circumstances the nondisclosure was not important land, aspect “The most fraudulent. in equity jurisdiction so far as for J specific performance concerned, is' аvailability The issue as piece that no of land its counter- has is more difficult of part else, anywhere impossible.' and is basic, underlying solution. The duplication expenditure ag will not where the intervene any money.” Am.Jur.,. amount of adequate, grieved party plain, speedy, has a Specific Performance, However, in complete remedy at law. .and adopts “Equity principle, not be- involving the sale case contracts fertile, cause the land is or rich in land, courts assume that lease of minerals, land, but because it fa- adequate party aggrieved does not have an subject England, vorite and favorеd remedy at law and is entitled to every country Anglo-Saxon performance. assigned The reasons origin. Land is assumed to have a’ con applied authorities for the rule land peculiar value, *.” C.J.S. convincing applied are when tract cases Specific Performance § *7 facts of the case before us. The to the following are some of such reasons: originally developed, As par- the rule had application ticular making the specific impos- unique “A is and vendee, available to the and duplication any of sible the use of extended and made available to the vendor money.” amount of by way mythical mutuality of referring to the vendor: remedy. grounds The for this extension variously doctrine have been stated: usually
“His are measured price the contract less the value “Various reasons have been advanced retained; land land is a com- for specific per- the doctrine that modity that has no established market may granted formance the vendor. value, may and the vendor not be able In some decisions the doctrine has been prove what his harm be. real will principle based on the mutuality, proof, if Even he can make this is, may since the vendee ob- may immediately land not be convertible tain performance the vendor i money, deprived into and he is is likewise . entitled to In that relief. ‘ power to 2 make new investments.” other decisions the reason is that 296 of farm lands the market value inadequate. determine is remedy at law
vendor’s
cases,
of lands in
of contract
‘equitable con-
breach
Finally,
doctrine of
proceedings, nor
general
deemed
in condemnation
version,’
is
the vendee
dam-
they
determine the
price for the
hesitated to
purchase
have
trustee
vendor,
ages
reason
therefor.1
to be the
be allowed
has been said
Specific
81
for the doctrinе.”
C.J.S.
speculation
the vendor
As to the
63, page 564.
other
may
opportunities
otherwise lose
investments,
patent
it is
that such a reason
unique.
It
is not
The land here involved
speculative
no
as to have
so remote and
gen-
irrigated
land common
farm
law,
yet
it is
standing in
court of
it is located. Sales
eral area in which
any
equity follows
law.
said that
frequent
similar
land are
event,
ap-
a consideration has little
such
market value.
difficult
establish its
plication
under the con-
in this case since
not hesitated
courts of this state have
Sweet,
191,
230
351 P.2d
82 Idaho
Land Contracts
Falls,
City
(1960);
81
of Twin
Farris v.
Christensen,
285, 404
Veldez v.
89 Idaho
(1959);
583,
Idaho
P.2d 996
State
347
Michel,
(1965);
88
Andersоn v.
P.2d 343
269,
Fonburg,
Idaho
rel. Rich v.
80
ex
(1965);
228,
Walker
29.7 major portion liere involved of “f. There are reasons, certain whol- purchase price is fully deferred not ly apart any concept from mutuality, of payable year until the of 18th end of remedy specific per- of payment provided by the con- formance is made unavailable to one tract. party Such, ato contract. example, for difficulty are enforcement, оf interests requiring mutuality The rule of * ** public, hardship. regarded remedy, highly at time as a one “(See the Illustrations 1-7 Sub- remedy extending specific reason for section for cases in which the fact been, vendor, to the has one party that can get a for decree necessity, perforated exceptions so as with does make it to lose substantial force. available other.)” 2 Restate-
“(2) The fact that ment, Contracts, 372, pp. 677, 678,. § specific enforcement available is 681, 682. party in itself to a contract is not “It be, general, [the in must contract] making for the rem- a sufficient reason obligation mutual in its and in its edy other; but it is of available to the remedy. constantly This is doctrine accompanies
weight other rea- when it courts, stated but there are so sons, when may be decisive many exceptions, especially with re- adequacy is difficult spect to obligation, that the rulé is no reason determine there other said, is from may far universal. It ** refusing specific for enforcement. however, general proposition, as a * Bilateral a e. where “Comment was intended to bind unique parties, for of land any contracts the sale both and for reason money bound, one of price are them not chattels is he cannot compеl performance specifically (So enforceable the suit the other. vendee, special excep- numerous and because of the so varied are the subject that he tions to present this rule is at character of the matter that it applicable of little force This reason is not rule. It is seeks. held many brought by the to com- modern cases and in suit vendor is view of price; the rem- the American Law pel payment Institute ‘The to him fact edy nevertheless available en- 360). party forcement prior conveyance (see is not available to one refusing one of sufficient reason fоr in this Subsection stated party.’ reaching Mutuality result. it to the other the reasons for *9 2.98 mutuality thing obligations of its
obligation
are so continuous as to
is
Pomeroy’s Equity
remedy another.)”
make
4
the effective enforcement of a
1405,
require
Ed.,
pp.
impossible,
Jurisprudence, 5th
decree
constant
or
§
1042,
long-continued supervision by
1043.
supplemental pro-
court and further
450,
Taylor,
v.
Wormward
Cf.
ceedings in order to enforce the de-
in
case
P.2d
So
221
686
compliance
fendant’s
with the decree
performance
have
specific
would
fact
performance
constantly
and his
vendees,
plaintiffs,
had
as
available to
been
recurring
This
duties of the contract.
perform, does not
refused to
defendants
particularly
performance
is
true where
remedy to de-
require equity to extend the
period
will
over a
extend
considerable
vendors,
fendants,
plaintiffs’ refusal
upon
as
acts,
a
of
of time and include
series
equity
perform.
must con-
In each case
to
building
a
construc-
the case of
availability of
affecting
sider
factors
all
”*
* *
Am.Jur.,
tion
contract.
remedy.
Performance,
70, p.
Specific
85.
§
Ordinarily equity
a
grant
will not
“ * * *
public
a
Where there is
performance
specific
a con
decree of
of
equity may
involved, a court of
interest
requires
enforcement of which
conduct
take
of a business and
control
supervision
court over an extended
while,
private
only
where
it for a
period
Pomeroy’s Equity
of time. 4
Juris
concerned,
court will
interests are
Ed.,
1405b,
1048,
prudence,
pp.
5th
1049.
§
business,
a
nor
not assume control of
principle
“It is a settled
that a court
enter a decree
enforcement
equity
ordinarily
will
decree
may require it
control and
to
only
performance
dispose
when
can
business,
the com-
unless
conduct
controversy by
a de-
the matter
remedy.
plainant
wholly
without
capable
present performance;
cree
”*
* *
Am.Jur.,
Pеr-
Specific
perform
party
it will
decree
71,
formance,
p. 87.
§
extending
continuous series
acts
time,
period
through long
not be
“Specific
enforcement will
Specific
performance
Performance
if the
is of such
decreed
C.J.S.
p.
en-
584.
make
a character as to
effective
unreasonably
forcement
difficult or to
rule,
general
courts
“As
require
supervision
long-continued
such
specific perform-
refuse to decree the
disproportionate
court as
provisions
of a
where its
ance
gained
stipulations
advantages
from such
are multifarious and
so
(cid:127)
during
be suffered
from time
time
a decree and to the harm to
n
(cid:127)
such lease.” 147
in case it is denied.
-So.2d
Bromberg
Eugenotto
a. The rule stated
“Comment:
Construction
Co.,
attempt
to indicate
the Section does
Ala.
So.
L.R.A.,
N.S.,
determining
(1908),
a method
when
the court refused to en-
degree
difficulty
is unreasonable
force
of a contract to let a
*10
dispropor-
supervision
space
long
is
certain amount of
how
a
floor
building
in a
gains
constructed,
to be
require
and losses involv-
tionate to the
which would
su-
pervision
plaintiff’s
great,
is
of
ed. When
need
method
construction to
produce
requisite
part performance ren-
especiаlly
space.
after
involved,
dered,
public interest is
or the
In Cahalan Inv.
v.Co. Yakima Central
the dif-
the court does not shrink from
Heating Co.,
70,
113 Wash.
300 Corp. Mont- Foods v. In Ambassador require may it to of which
forcement 100, Co., Ill.App.2d & gomery Ward unless business conduct the control 572, (1963), court refused N.E.2d with- wholly otherwise complaint performance contract of a for remedy. out cookies, operation to sell a concession “ spe- equity can decree ‘A court of etc., doughnuts, in defendant’s store. it can performance only when cific only years, which term was two of for five controversy dispose the matter quoted unexpired. The court remained perform- capable present decree Goldberg, Ill.App. Langson from v. party to ance, it cannot decree but 18 N.E.2d as follows: extending duty, perform continuous “ applicable to an action ‘The years, will leave a series of over a con the character before us aggrieved his remedies party to its terms calls Mitchell Roquemore & Hall v. law/ acts, succession whose Bros., 52 South. Ala. *** transac cannot be consummated
Am.St.Rep. 52. requires protracted su tion and which “ * equity will not court of A spe pervision direction, cannot be per- specifically enforce the ordinarily Sanitary cifically Harley enforced. private where formance of a 337; Grape Ill.App. Chicago, Dist. of *11 adequate aggrieved party has an the Spellman, Ill.App. Creek 39 Coal Co. v. there we think at law. Here jurisdic 630; equity, when it takes re- adequate remedy. The an is such specific perform tion to enforce the law an action at spondent can maintain in a contract will enforce it ance of contract. damages breach of the in for a parts, such all its and will not undertake against this advanced argument The calls enforcement where the contract proofs difficulty making the per for a succession of acts whose present But the facts actual loss. the by formance cannot consummated be respect. nothing The unusual transaction, requires which appel- the was breached when contract protracted supervision. Hernreich v. be perform. There can refused to lant ” Ill.App. Lidberg, 105 495.' 192 N.E. respondent breach, and the now but one 2d аt 576. right single a to recover in has “ * * * it suffered A can action all the has court of specific performance by only breach.” decree when or will suffer reason dispose can P. it 193 at 212. of the matter in contro-
301 present grant a capable such relief will refuse to de- versy by a decree con- decree a cree of of a but cannot performance, performance duty, pro- perform a tract where would continuous party to years, hardship injustice but or the de- extending a series of duce to over reasonably aggrieved party to his fendant not the con- within will leave * * partiеs incep- Roquemore templation of the at the law: remedies at 475, hardship contract; Bros., Ala. tion of the such v. Mitchell & Hall 53, injustice need not from fraud Am.St.Rep. or arise 52 So. or and need be such as mistake not prevent from be- will contract Tucker, Idaho The case of Locklear v. law, obligatory point but coming distinguish- (1949), is to be P.2d exists whenever contract would particulars: significant this in three ed from produce unjust a condition to the de- purchas- by brought action was (1) The injurious fendant, conse- followed er; period payment limited was quences could not be deemed ; and years (annual payment $500) to three contemplated ex- have been when he required vendors (3) the contract ”* the contract. Am. ecuted place purchaser There a deed in escrow. Jur., Specific Performance, supervision by court. was no need of situation of “The contract purchase case the In this balance of parties be rem- must that the such price $37,500 payable a over made edy will be plaintiffs’ years. During of 18 all of oppressive. general- harsh or This years farming they had never owned defendants; operates ly in favor of but farm, only. had been farmers tenant may plaintiff be invoked when background evident from It their demands defendant plaintiffs of their the terms contract that cross-complaint. The counter-claim dependent upon from be income would hardship may from oppression or result required payments. the farm make provisions con- unconscionable itself; may or it result from Equity strictly will enforce parties, unconnected situation unjust, when to do so would the terms of the contract or with with oppressive or unconscionable. negotiation the circumstances of its *12 “ * * * is, execution; general may be facts The from external or or con- events circumstances which laid down that a court of the de- granting trol or affect the situation of its the exercise of discretion specific Equity enforcement of the contract Pomeroy’s fendant.” Juris- harsh, inequitable, oppressive, 1405a, p. would be Ed., 1044. prudence, 5th § A.L.R., Anno., or unconscionable.” that it point been made has “The Specific Performance as Matter of party to a con legal right aof not the Right, pp. 57, au- where numerous specifically. it enforced to have are thorities collected. must relief he secure this order also, Specific Performance See C.J.S. oppression unconscion that no show taken of the advantage has been able since he party contract (Dist.Ct.Idaho)
other
to the
In Texas Co. v. Andres
declined,
ask
of conscience
F.Supp.
(1951),
comes into
court
the court
beyond
letter of
ing
ground
hardship
oppression,
for a
on the
right.
sell,
He asks for
legal
option
con-
his strict
to enforce an
equitable rights
beyond
prop-
even
favor
his
tained in
the lease of
service station
that favor
erty,
during
his claim to
period
years,
when he bases
after a
of' ten
hard, oppressive, or technical
upon a
which time the lessor was unaware of
equita
efficacy
option provision
To come within
advantage.
property
notably
before the court
must stand
had
increased in value.
rule he
ble
relying
scrutiny,
prepared to meet its
We
not infer
the contract in this
do
equitable char
upon the fairness
oppressive.
case is in terms
But
unfair or
This must
the contract.
acter of
during which
long
over the
time
he must
position, but
only be his own
executory
may
it will remain
in fact
it
op
unjust or
also' show that
is'
just
become
that. Should such a situation
compel him
pressive
to the defendant
arise, could the court then refuse to execute
Pratt
perform specifically. Stone v.’
its decree ?
(i860)
Farnan, performance, sought. had such 94 P. been again urge majority during period, by reason inability
Petitioners
pay,
to a
is available
the vendors’
would be
ac-
a con-
upon
breach
the vendee of
tion for breach
Mс-
vendor
of contract-—as Justice
rea-
of real estate. The
tract for the sale
Fadden
in McCandless
In
said
v. Schick.
apply
in
refusing
son for
that rule
such event the
would
re-
vendors
have to
developed
original
coup by
case was
amply
resort
to the land. The court
opinion.
not,
terms,
judgment.
its
could
enforce
up-
original briefing
Neither in their
nor
opposition
to the rule that
court
*14
petition
rehearing
on this
re-
do the
equity
specifically
ordinarily
en-
will not
show,
spondents assert,
that
or offer
period
requiring
long
force a contract
by way
remedy
their
would be
supervision, petitioners
cite Locklеar
any
inadequate, untimely, incomplete,
inor
Tucker,
84, 203 P.2d
69 Idaho
respect
inequitable. They
not assert
do
Schick,
McCandless v.
they
by way
that
could not made whole
case