186 P. 437 | Utah | 1919
On April 13, 1917, the defendant, Lars A. Johnson, who is the respondent here, gave to P. P. Thomas, appellant, a writ
“In consideration of $1.00 paid to me by P. P. Thomas, the receipt of which is hereby acknowledged, and for other valuable considerations, Lars A. Johnson, the undersigned, hereby gives and grants to P. P. Thomas and his assigns, the exclusive right to purchase' at his or their option, the following described property: (Describing the property) — for the sum of $6,500.00, less the amount paid for this option. The terms of the payment to be as follows: 14 cash, % on or before December 15, 1917, balance 10 years’ time at 8 per cent, per annum. * * *
“And if the said P. P. Thomas * * * shall comply or offer to comply with the terms of payment above specified, or any other terms which I may hereafter agree to accept, I agree to convey and transfer said property to said P. P. Thomas or such grantee as he might designate, by warranty deed signed by myself and my wife, and any other person then having any estate in said land and to furnish at my expense a certified abstract, showing a marketable title vesting in the grantor to be named, in said deed at the date of transfer, subject only to such liens and incumbrances as are under the terms of payment to be assumed by the grantee, and in case said title shall be defective in any way, I agree to perfect the same at my expense. It is understood that this option may be exercised by P. P. Thomas or his assigns at any time on or before thirty-seven days from the date hereof, or at any time thereafter and before ten days’ written notice of intention to terminate shall have been given.”
Suit was later brought by appellant in the district court of Utah county for the specific enforcement of the contract above set forth, and issues were joined by the parties to the suit. At the trial an advisory jury was impaneled.. After producing testimony as to the execution and delivery of the option contract, and after placing the contract in evidence, appellant testified that he met Johnson, the respondent, at the latter’s farm on May 19, 1917. Regarding a conversation between them at that time and place, Thomas testified:
"I said I was ready to make the payment, and that, if he would go with me to a place of a notary public and fix up the papers, I was ready to go through with my part of the deal. * * * I stated that I was ready to make payment of the portion that was due according to the contract. Johnson stated that he refused to let me have that land; that he did not consider there was a contract. I said I was ready and willing to pay.”
The objection was sustained by the court and exception reserved. It was then stipulated in open court:
“That Elias Hansen, who on the 19th day of May, 1917, was the*428 attorney for P. P. Thomas, and who accompanied P. P. Thomas at the time the written offer was made, talked with Mr. Liars A. Johnson and requested that he comply with the contract, and that Lars A. Johnson told Elias Hansen at that time that he would not and could not conyey this property, because his brother, John Johnson, had an interest in the property, and that he, John Johnson, would not consent to this contract, and that R. L. Howard would testify, if permitted, that on April 13, 1917, at the time the alleged option was made, Lars A. Johnson stated to P. P. Thomas, in the presence of R. L. Howard, that he was the absolute owner of the 100 acres.”
The jury was then discharged, and the court ordered the cause dismissed.
The court did not determine the issue of fact as to whether or not the respondent ever made, executed, and delivered the option contract. Among other findings, the court found that the respondent never tendered performance to appellant, and that appellant accepted and acquiesced in respondent’s renunciation of the contract. Two questions are therefore raised by this appeal: (1) Was it necessary for appellant to make an actual and physical tender of the first payment on the contract? (2) After the option contract was renounced by respondent was the renunciation ratified by appellant ?
It will be observed that, according to the undisputed evidence, appellant offered to comply with the terms of the contract, and that respondent then and there denied
The court’s finding that the renunciation of the contract was assented to and ratified by appellant is unsupported by any evidence. It may be, that upon a ful] hearing such a conclusion would be proper, but under the present meager and-fragmentary record it is not justified. , ' -
Other questions are discussed in the briefs of counsel. These were not raised in the trial court, but, as the cause will probably be tried again, we shall briefly refer to them.
It is contended by respondent that one dollar is an inadequate consideration for the option; that to tie up land worth $6,000 for the time provided for in the option is an inequity so manifest, so strong, and so gross as to shock the conscience of the chancellor.
According to the weight of authority, a nominal consideration for an option is sufficient. Miller v. Kimmel (Okl.) 184 Pac. 762; Smith v. Bangham, 156 Cal. 359, 104 Pac. 689, 28 L. R. A. (N. S.) 523; 25 R. C. L. section
It is urged by respondent’s counsel that the 'contract is so vague and uncertain regarding the deferred payments that appellant is not entitled to specific performance.
For the reason that the record shows that respondent renounced and repudiated the contract, and thereby waived any tender, if the same was required under the contract, at the time appellant offered compliance with its terms, and because the record does not contain any evidence to establish that appellant acquiesced in respondent’s renunciation of the option, judgment is reversed, and the' district court is directed to vacate its findings of fact and conclusions of law and grant a new trial. Costs of appeal to appellant.