Thomas v. Klein

Moreover, testimony Terry Gaye Billingsley

and further connected the Roger Thomas, C. THOMAS and Ida L. shootings. with the money defendant wife, husband and and Paul M. Thomas however, argues, testimony of an Thomas, and wife, Rose C. husband and accomplice cannot be a sufficient founda Bank, Boulder, and First National physical tion for admission of evidence. Co-Executor of the Estate of Edward S. support position of this he cites I.C. 19- § Filler, Deceased, Plaintiffs-Appellants, However, argument 2117. miscon provides only strues the statute which solely

a conviction cannot obtained Klein, Melvin B. KLEIN and Alta Vilate testimony accomplice, of an but must be husband and wife and Albert T. Bran tending other evidence corroborated Margaret Brannen, nen and R. husband with the connect the defendant commission wife, and Johnson, and Marie Ann a/k/a prohibit the crime. The statute does not Johnson, Marie widow, Hibbard a accomplice providing necessary Jackson, man, single Edward R. a testimony foundation for the admission of Jackson, widow, Florence M. and Mau physical an item of evidence. rice Klaas, V. Klaas and Pearl A. hus wife, band and and W. A. Freeman and Finally, argues the defendant Sylvia Freeman, Hiller husband and money the admission of the into evi wife, Sylvia Freeman, Hiller prejudicial dence was because he had not a di woman, Jacqueline Hiller, vorced charged robbery with the crime of widow, Greg Paul Peterson and Solosabal and the Peggy and John T. Swank and A. Swank, tending introduction evidence to show wife, husband and Defendants- large he had taken amounts of money Respondents. jury. from them would inflame the This No. 12137. argument jury also without merit. A to a full and complete description entitled Supreme Court of Idaho. surrounding of the events the commission regardless of a crime of whether this com April plete description may implicate a defendant the commission of other crimes not Izatt, State

charged. Because the introduction money clearly relevant to con

necting crime, the defendant with the

providing complete description of the cir

cumstances of a crime and showing purpose motive or for the commission of the

(cid:127) crime, there was no error in introduction of retrial, money. On the district court deny

should motions to exclude the money any ground

from evidence on discussed in opinion.

this section of the judgment of conviction is reversed

and the cause remanded for a new trial.

McFADDEN, DONALDSON BIST-

LINE, JJ., concur.

SHEPARD, J.,C. dissents without opin-

ion.

McFADDEN, Justice. appeal This involves determining the rel- ative of vendors and defaulting vendees under an installment land sale con- tract. Appellants, successors to the ven- interests, dors’ appeal from judgment the Fifth Judicial District Court quieting title to the property in the appellants, but subjecting their interests to restitutionary liens totalling in favor of re- spondents, successors to the vendees’ inter- ests. Reversed and remanded. The controversy concerns an installment land contract, sale executed in 1957 and modified in for the purchase of a resort complex motel located near Ketc- hum, agreement Idaho. The provided for monthly payments installment and for for- feiture of payments all and improvements if the vendees failed to cure defaults of payments within 60 days of notification of the default. The original vendees’ interests have been assigned times, several culminat- ing in the assignment to defendants-respon- dents, John and Peggy Swank. Respon- dents Swank have possession been in November, 1969, since and in de- payments fault of July since In July, appellants served written notification of the default March, and in present instituted the action because the default had not Appellants been cured. sought judgment forfeiting quieting title and transferring possession of the property against to them as all succes- sors to the vendees’ intereste. All defendants, of these named except respon- Swank, respondent dents Hiller respon- Johnson, dent have defaulted or have stipu- lated possess any do not interest in the property. Korb, III, Kneeland, Robert Laggis, After finding that the vendees’ default Collier, Ketchum, Korb & Gregory L. Wil- had not been cured within days Powers, Rothgerber, Appel liams of & Den- court forfeited the quieted contract and ti- ver, Colo., for plaintiffs-appellants. appellants. tle in The trial court however James, Hobdey Andrew F. James of & concluded that enforcement of the forfei- Varin, Gooding, respondents John T. ture clause would penalty. constitute a To A. Peggy Swank. result, avoid this appellants were ordered to Jr., Kennedy,

James L. of Walker & Ken- pay respondents Swank, re- Falls, respondent Jacqueline nedy, spondent Twin respondent Hiller and Johnson. Hiller. These restitutionary judgments were se- property. suant subsidiary cured liens contracts makes the judgment, the trial court’s there- comparison effect of normal of actual fore, appellants were restored to liquidated damages difficult if impossi- property, subjected factors, possession ble. These combined with the un- $100,000.00. totaling below, in excess of No certainty liens of the testimony suggest judicial mention was made as to their order of sale property of the is the appeal judg- from this priority. Appellants equitable course to follow.

ment. This decision is in conformity with our Butterfield, earlier in Ellis v.

Actions to forfeit contractual 644, (1977), 570 P.2d 1334 aff’d on defaulting party, pursuant of the to reh., clause, (1978), a forfeiture addressed to the although the remedy here decreed is differ- equitable court’s discretion. Graves v. Cu ent. In Ellis v. supra, we 272 P.2d 1020 en- pic, 75 Idaho parties’ forced the actions, equita it is within the court’s forfeiture provision because we to decree that the found power property ble substantial evi- appeal dence on by judicial support sold sale. Walker v. Nunnen the trial court’s finding that kamp, retention of payments made under liquidated the contract as damages particular Because of the facts of was not inequitable. unreasonable or How- this it is the conclusion of this court ever, in the instant case the trial court proper was not a that it situation for the found that the provision was, attempt trial court to to apply Graves v. effect, an penalty. unenforceable The trial Cupic, supra, and that a exercise of court thus held that the vendees were not discretion equitable requires that the con bound by remedy provided by contract, be foreclosed and be sold and thus we conclude judicial sale of by judicial sale. This result is consistent equitable the most requested by appellants with the relief in this judgment case. The of the trial post-trial their brief submitted to the trial court is reversed and the cause remanded by appellants court and reiterated during judicial sale of the property. The par- arguments oral before this court.1 Such ties shall be allowed to participate in the appropriate relief is in light of the uncer bidding of the property sale, at the concerning tainties the property’s fair mar shall be free and clear of any lien or claim ket value and the reasonable rental value of of the parties. during premises period were in possession vendees of the property. The trial court shall direct pro- that the Additionally, long length lapsed of time ceeds of such sale be first applied toward since execution of this contract and the expenses costs and of the sale and then multiplicity assignments of the vendees’ satisfy the amount appellants, owed in- interests, some of which involved cluding install unpaid principal indebtedness, ac- land sale ment contracts with similar forfei crued date, interest attorney fees and provisions, suggest judicial ture sale of costs of action including appeal. the property may be the most balance remaining after of these resolution of the various competing amounts, claims. if any, shall be apportioned Significantly, original vendors among are not respondents Swank, respondent Hil- in this action so that involved the normal ler and respondent Johnson as situation in forfeiture actions is not here court shall find them to be entitled. The Also, present. the fact that each of the trial court shall appropriate enter findings various fact, successors to the vendees’ of conclusions of law judgment assigned interests have pur- their interests accordance with the resolution of this issue Respondent Johnson, Respondent pleadings, requested Hiller and in their also sale property. may terfield, hear such additional evidence as Idaho at n. 570 P.2d at respondents may effect, properly offer. n. 5. In the trial court found clause was reasonable approxi- The judgment of the district court is re- mation of the vendor’s and there- versed with directions that the district fore was not an unenforceable penalty. court fix attorney appeal, fees on and the Both in Ellis in the case now before us cause is remanded for further proceedings the findings of the trial court were sup- opinion. consistent with this Costs ap- ported by substantial evidence. In neither pellants. case could it be that the findings said made erroneous, below clearly the standard SHEPARD, J.,C. and DONALDSON and for reversal 52(a). established I.R.C.P. BAKES, JJ., concur. Therefore, vantage point from the of an BISTLINE, J., court, concurs in the appellate result. these two cases were factu- different, ally very and to find them to be BAKES, Justice, concurring specially: is, indistinguishable” effect, “essentially I majority opinion believe the of Justice retry appeal. to them on McFadden properly resolves the issues Although dissenting Justice Bistline’s presented However, in this case. the dis- opinions in this purport in Ellis and to suggests sent result reached here is Ellis, applied attack the rule of law what inconsistent with our decision in Ellis v. they doing are actually retrying the facts 98 Idaho 570 P.2d 1334 in the so doing, they Ellis case. In violate (1977). I emphasize write to that the dif- long standing findings rule ference in outcome between that case and trial supported by court which are substan- this one is not due to variation in the upheld tial on appeal evidence will be re- cases, law applied in the two but to a differ- appellate gardless of what the court might ence between cognizable ap- the facts ought think the result have been. peal. long “It has been settled rule of this Although dissenting opinion in his Justice findings of Bistline finds “essentially this case indistin- by court are supported substantial and guishable” Ellis, from this observation re- evidence, competent, though conflicting, flects recognize a failure to the most signif- findings will be disturbed on appellate icant fact which an court must Larson, 91 appeal. Riley v. appeal, consider on decision of the (1967); Bowling Meridian regard trial court. In this the two cases Brown, Lanes, Inc. 412 vitally different. In this case the trial 52(a); (1966); I.R.C.P. Jones v. court District, awarded relief to the Big Irrigation Lost River Ida- vendees, implicitly finding that without ho The trial provi- such relief judge conflicting is the of arbiter evi- impermissible dence; operate pen- sion would of the weight, his determination contrast, trial alty. By court in Ellis credibility, implications inferences found, it,1 supplanted evidence before upon by based thereof is not to damage provision or conclusions liquidated impressions Court’s “is neither Meridian inequi- Bowling Ellis-Butterfield contract the written record. Brown, Lanes, supra.” Thompson table nor See Ellis v. But- Inc. v. unreasonable.” $20,000, $2,768 trial) only upon by of an increase of 1. Not all of the facts relied the dissent- ing opinion inception of the contract 7'/2 in Ellis were the result of evidence since the fact, $15,000 principal stipulated trial. In of and interest admitted or nesses trial. Their through no wit- before. The which the vendees when possession paid during appeared for the vendee-EUises at the years (90 months) (A proof eight compared 7‘/2 of consisted of exhibits to the they enjoyed H) parties agreed up had to the which the constitut- trial, proof. only have constituted less than ed their ness for the defense and he testified the value of the The vendor was the wit- time of only per $200 an unreasonable month rental—not (the amount, property “as of found. now” date as the trial court of a judicial enforcement 584, 587, P.2d which decreed Fairchild, Ellis, by probably Mr. and Mrs. forfeiture. will be the for certain dispossessed, now appellate of accepted scope generally dispositions recognize that first find- court’s respect a trial with review poles apart. are the two cases Judge well was described ings of fact Syrup Corp. v. Coca-Cola in Cleo Sanborn The bench and bar bound to be con- Co.: by today’s majority opinion fused review, retry Court, “This forfeiture, sale, and denies directs a judgment its fact or substitute issues in con- at the same time insists that for that of to such issues respect simi- formity with Ellis. The close factual trial court. omitted.] [Citations larity of the two cases needs to be noted. decide doubtful of a trial court to power Ellis, default, In at the time the vendees deciding is not limited to of fact issues had a total paid principal on In correctly. them [Citations omitted.] $17,232.00, approximately contract of 47% may not set non-jury this Court addition, price. the total a trial court finding fact of aside a paid the vendors of inter- almost no evidence there is substantial unless est good and a share clear it, it unless sustain taxes. The default occurred on Thomas evidence, it was or unless weight of scale, larger proportions. similar law. view of the by an erroneous induced There, $97,000.00 had paid pur- on a 416, 417- F.2d 139 omitted.]” [Citations $160,000.00, chase price approximately of denied, 1943), 321 U.S. (8th cert. Cir. 18 pay- 60% of the total Interest principal. 638, (1944), 781, 88 L.Ed. 1074 64 S.Ct. $60,000.00. cases, ments were near In both Practice 5A Moore’s Federal quoted record, the as could indicated expected, be (2d 1948). 52.03[1], at 2621-22 ed. ¶ question appreciat- “tri- although well remember that It is to significantly ed over of the con- the facts, be as to may mistaken judges al payments, improve- either because judges always are omnicient.” appellate by ments made because of vendees or 537, (2d 180 Cir. Higgins, F.2d 542 Orvis inflationary factors at work in the contem- J., frequent- (Chase, dissenting). Too 1950) Indeed, porary real estate the El- market. by has been this truth overlooked ly presented yet equities lis case stronger See, g., Agri-Lines e. Jenkins v. Court. There, favor of the vendees. the vendees Corp.,-Idaho-,-P.2d-(1978) days were six late in complying with the rehearing dissenting), petition for (Bakes, J., notice, demand of the default but the fact 1978; Industrial Lyons v. granted April they comply. did When their tender Fund, 565 Special Indem. refused, payments they sought back was J., The (1977) (Bakes, dissenting). P.2d 1360 financing they out and secured with which impetus dissenting opinion in this case adds That, tendered the full contract balance. to this unfortunate trend. too, contrast, Here, was refused. by arrearages, vendees never did tender Justice, BISTLINE, in the re- concurring nor did full time tender dissenting. sult and contract balance. my dissent the reasons stated For cases, judi- asked vendors both 98 Ellis v. forfeiture, based cial enforcement indistinguish- essentially (1977), a provision contract of the familiar violation bar, the one at I concur from able curing a making time of essence the rec- opinion today applaud Court’s cases, pleaded the vendees In both default. to v. Nunnen- it accords Walker ognition in- unjust, forfeiture would such a that kamp, The net re- unconscionable. equitable and However, at all to I do subscribe the Ellis judicial process is that sult to- decision announced statement forfeiture vendors are awarded conformity the Ellis decision day is in keep all pay- which allows them to back discretion to enforce contractual forfeiture obtain to the property provisions ments and clear title impermissible. is presumptively present at its market value. Thomas In neither Thomas nor Ellis did vendors by vendors contrast are awarded the reme- attempt to show that failure enforce the dy judicial sale which allows them no provision forfeiture would lead an “un- they bargained, more than for which conscionable result.” purchase price total namely, the for which The unanimous v. Cupic Court in Graves sold. originally Ironically, statement, made supported by this further exactly it was such a that the Ellis Law, Contracts, Restatement 339: § vendees offered their vendors without all Generally speaking, parties to a contract delay expense of a lawsuit and an may agree upon liquidated damages in appeal. are How the members breach, anticipation of a in any case bar highly bench and to understand such the circumstances such that disparate results?1 accurate determination of the impossible, pro- would be difficult or I. vided the liquidated damages fixed Perhaps answer is to be found in the by the contract bear a reasonable relation following language today’s from majority But, to the damages. actual where the opinion: or damage fixed the con- forfeit Actions to arbitrary tract is and bears no reasonable defaulting party, pursuant to a for- anticipated damage, relation to the and is clause, feiture are addressed unconscionable, exorbitant it is re- court’s discretion. Graves v. garded “penalty”, as a contractu- Cupic,75 Idaho al therefor is void and unen- forceable. language Graves v. Cupic, actual however, significantly different: Id. 75 Idaho at P.2d at 1023. With

Equity grant specific perform- will not mind, this admonition in the Court exam- ance of a forfeiture unless failure to ined the contract and held as a lead do so would to an unconscionable matter of law result.2 damages Here stipulated the for all-important. jur- parties unconscionable, is In this clearly difference is and ex- isdiction, by virtue doctrine orbitant. It is arbitrary and bears no Cupic, damages Graves v. exercise reasonable relation to the Bakes, rule, concurring opinion, approved general it in 1. Justice his finds as stated in Pom- today’s distinguishable eroy’s Equity Jurisprudence: from Ellis because here “the trial court awarded re- “[Tjhat equity a court of will interfere on grounds lief to the vendees" on the that en- thereto, party behalf of the entitled and en- forcement the forfeiture clause would have forfeiture, force a legal but will leave him to his “impermissible penalty,” whereas in been an remedies, any, though if even the case Ellis the trial court enforced forfeiture be- might equitable be one which no relief penalty. it was I cause he found not a given defaulting party would be to the courts, thought have that when trial two (1 Pomeroy’s Equity the forfeiture.’ facts, essentially indistinguishable oppo- reach 459, ed., Jurisprudence, pp. 4th sec. equitable granted site conclusions as to relief 871.)” withheld, precisely appel- it or late is the role of an Sullivan v. Burcaw. Id. at 208 P. at 843. resulting resolve the conflict. Far court to rule, exception general As the to the the Court manifesting retry a from desire to facts stated, language of also from the Mr. Justice below, practice cases decided such a serves to Co., Lanyon Van Zinc Devanter Brewster v. give badly guidance needed bench and bar that, Cir., (1905), 140 F. C.C.A. 213 very suddenly alike in what has become a un- insuperable objection to “there is no the en- settled of the law in Idaho. area a forfeiture when that is more forcement of principles right, justice, with the consonant Cupic 2. The Graves v. reaffirmed what morality than to withhold relief.” it had stated 25 earlier Sullivan v. Id. 35 208 P. at 843. Idaho at Burcaw, (1922), 208 P.

HI proper is not made clear. When a trial anticipated have parties could reversed, Hence, responsibility court is occurred. the breach which guidance dealing provide this Court to unen- and is penalty for a provision is with future cases. forceable. above, Cupic As laid noted Graves Having con- P.2d at 1025. Id. that, Idaho, general equi- rules down the re- damages stipulation for

cluded generally will not enforce a contractual ty oth- penalty, in an unenforceable sulted and that even when provision for forfeiture /. obvi- self-proving, was proposition er provision “liquidated such a is robed as a not show that vendors could ously the not be enforced where it damages,” it will uncon- would be forfeiture grant failure to frequently is reality penalty.3 is in a What scionable. misunderstood, however, gen- is that these reviewing mind in kept in must be What single remedy eral rules do not dictate a contrac- though the that even cases is these every situation. The harness must be made of law a matter not as provision tual particular horse. In Graves v. to fit each even face, say, is to on its invalid Cupic only itself vendor to remain is allowed though parties to the suit. vendee still refuse equity part pay- down vendee had made it and until unless grant only contract to find ment on a produces to do so that failure established qual- that she did not shortly out thereafter That, is the say, I result. necessary unconscionable which was ify liquor for a license hold- succinct, unequivocal clear, plain, running operation. only Since pleased I am Cupic. involved, ing of Graves v. vendee were original vendor and it embraced apparently has months af- majority only since the default occurred formed, ter was since the again. once contract grossly dispro- vendee’s down damages, and portionate to the vendor’s or since the vendee had no desire resources II. to redeem her under- majority’s own Unfortunately, equitable remedy was property, today’s standing accomplishes what it restitution. The Court therefore decreed facts of particular is limited to “the payment, down less return of the vendee’s Following this case.” on the heels of Ellis v. (rental costs) to the actual submit, ruling, gives I vendors. the trial bench as to what guidance zero only can It was soon seen that the result Idaho, practitioners is in and leaves the law equity confusion if a court of mechani- be position untenable and unenviable in an cally the identical for com- fashions advising while clients. The lesson of pletely different cases. obviously case was judge Nunnenkamp, The trial in this is that a supra, Walker v. in con- damages, actual remedies trying equity many to award of has different court general equi- the rem- understanding applying of formity disposal with his at its Cupic. majori- Cupic partic- The v. principles in Graves v. table of Graves edy applied lesson essence, Unfortunately, such a holds that ular situations. ty opinion, or uni- particular always has not been remembered proper given remedy is formly applied by this Court.4 why reason it is not of this case. The facts Baird, anything Cupic it.” Raff v. year done under was one after Graves v. 3. Less than 422, 427, down, quoted approvingly handed this Court 9-10, A.L.R.2d, Annot., improper application for prime example § from 31 of a 4. A of aligned restitutionary remedy itself proposition Idaho had not Howard 189, is to be found in Co., jurisdictions hold that a v. Bar Bell Land & Cattle which with those “vendee, That case was relied by defaulting, had become an outlaw heavily by majority in Ellis v. Butterfield respect contract or of the without today payment The the Court alludes from the vendees and are now briefly assignments “multiplicity long gone. Many of the vendees in turn interests,” of vendees’ and the fact became intermediate selling to vendors — involved,” purchasers.5 new original vendors The only remedy “the can applied just and should judicial be suggests that sale therefore the this —not case but in all such cases —is equitable to treat a “most resolution.” I concur. Ju- seasoned is, contract as that really which it equitable solution, dicial sale is it is a security And, just device. mortgages this cases multiple assign- for and all where are foreclosed and the property sold, so be occurred, ments the contract have where it awith contract vendee’s interest. Such up substantial has built or was approach I advocated in Ellis changed where the has radically in language strikingly similar to that now purchase. since time value adopted by the Court in this case: short, In cannot or Primarily, though, I always have been of this, give like the view that in nearly all of con- these relief which directed in Graves v. Cu- cases, per- there has been pic. simple original reason formance years, over number and in here pay- vendors who received down many assignments by instances both the parties ment over are not original vendees, vendors and and second the action. sold paper Those vendors their assignments, third only practical entirely present litiga- and are out of the solution, one, just and a is that equity posture, tion. it would certainly be settle the judicial matter sale. a-, proposition of law or equity remarkable Walker v. Nunnenkamp, supra, is not Thomases, assignees court to hold the only sound authority for those proposi- vendors, original accountable for mo- it, tions I previously cited received, nies which never in recognizing these contract-forfeiture years’ down and four as being cases entirely by eq- “controlled principal payments worth of interest and principles,” uitable on to went hold that paid origi- which were into the hands of “the court in its may wisdom deem it Nonetheless, nal vendors. such a result to direct a application would follow blind sale of Walker, involved.” Cupic restitutionary Graves formula to 498-9, 84 Idaho at 373 P.2d at 568. Any the facts of this case. such result Generally, equities when fairness and the quickly put an end to the practice of dictate, of a case so courts have the inher- making estate time transactions af- ent power to property subject order that fair of contracts. to an installment land sale contract be judge apply trial did his best to by judicial sold sale. Ill American Law restitutionary remedy Cupic, of Graves Property, (1952); 11.74 Blondell v. § simply Beam, but such is unworkable where (1966) Or. down a sizable (significant have taken appreciation vendors value despite completely dy appropriate that the cases were will almost be fact never under such despite dissimilar on their own facts and the the disap- circumstances and such proved. should cases superseded by fact that Howard had been far more extensive treatment in Walker v. Nun- Ellis, nenkamp, supra. Court in Unlike the multiple assignments 5. The involved in this involving a Howard was faced with situation apparent anomaly. an case resulted in As contract, assignments multiple a far Judge nicely put Kramer so it: default, period by more extended one a tender “Among fascinating problems in this law- any party who not a the con- parties suit is fact that each of the asks the all, dispute interloping tracts at and a with the money they Court award it more than have party rights. As over timber in Ellis Court or have if invested received the con- follow, acknowledged but declined How- performed.” Obviously, had tracts been remedy imposed restitutionary ard Court the reasons a on parties cannot be so accommodated. pattern complex fact that case. For the text, given in reme-

Hg contract balance unpaid remaining provisions small “contractual liquidated indebtedness); damages.” default of Buyers Henderson in such clev- on contract erly worded were regularly documents Morey, (1965) 241 Or. provisions turned out because such (sale unpaid exceed proceeds will contract part signed. of the which contracts balance). still remains Time all, After “a contract a contract.” trial court Court to instruct the that if it that, because of insufficient changed be found or This all that in Court Graves evidence, Cupic. so, it took doing In a two-fisted inconclusive unable to accu- forfeitures, against stance as a matter of damages or for rately determine oth- (but property) contract law. In yet er find reason sale more essence, the said: “Put plainly judicial sale should appropriate, a be or- your provisions contracts for forfeitures. original.) dered. (Emphasis But, the rule forfeiture is a remains Ellis v. 572 P.2d law, in equity, allowable not and equity specifically will not enforce a forfeiture unless the to do so would failure III. lead to an result. unconscionable Call for- majority Justice for the Bakes wrote provisions feiture a different by name if Ellis: you will. No matter. courts will ex- An installment land sale contract is . and, amine provision such a contractual essence, composed hybrid where they parties see what the have concepts law on one hand and con- ‘liquidated damages’ denominated are not tract law on the other. such in reality, and fail bear reasonable relation to damages parties which the on 98 Idaho at 570 P.2d at 1336. The entering might into the contract have antic- proposition is A correct. real estate trans- ipated, such will be action, notwithstanding its embodiment treated as a penalty, contract, executory an remains a transac- court, which it really equity, is. acquires tion in which a buyer not specifically provision.” enforce such a property. degree With of assurance That is the teaching Cupic. Graves v. As having flows from been involved in the same Court year was to remark a later Graves v. Cupic, having and assiduously Baird, in Raff v. supra, then, followed all such since being cases In Cupic, Graves v. those, of counsel in some of I conclude by 1020, this court aligned itself with those emphasizing the evolution case law in annotator, referred to by 31 A.L.R.2d “hybrid” For many years prior field. 19, as follows: to Graves v. Cupic, district courts of “In a majority jurisdic- of American this state than brought more times vendor, tions right in case of gavel down the against defaulting purchas- vendee, by default to retain as for- litany ers with the same which the Court money paid feited contract in ex- used in Ellis: “A is a contract contract. cess of damages sustained from the your payment, comply Miss fail to with the breach has California, been denied. default, your by very lan- Connecticut, Utah, a firm rule therein, guage you signed, is forfeit- against forfeiture seems now to be estab- ed, along any equity property, lished, supported by opinions which are improvements you may have made.” among the best to be found on the sub- ject prompted no doubt the ‘In- courts, however, Some district were fa- stinctive revolt making the ven- principle miliar with the that: “Equity ab- ” dor more than whole.’ Accordingly hors a forfeiture.” there were 76 Idaho at 283 P.2d at some cases where forfei- contract tures, forfeitures, called were not enforced. What has not generally noted is that brought using This vendors to avoid Cupic Graves v. principle of piercing the terminology, “liquidated disguised and forfeitures were damages” contractual required of actual damages. no evidence P.2d produced Rather, None was in that case. William F. BREWER and Helen G. the determination that the contractual pro- Brewer, wife, husband and penalty vision was in fact a was made on Plaintiffs-Respondents, the face the amount of down compared to Donald E. PITKIN and Martha M. $50,000.00 purchase price. The Court Pitkin, wife, husband and proportions there noted various other Defendants-Appellants. been so held to be a penalty, in cases

mainly from Utah California. No. 12369. Then, later in Walker v. Nunnen- Supreme of Idaho.

kamp, denying petition rehearing, expanded the Court the concept so that April defaulting buyers could show that a con- provision calling tractual for retention as damages” of

“liquidated paid, plus all sums

improvements, plus appreciated values may

also constitute a “penalty”:

The rule that not enforce a

penalty applicable to any action

real estate contract where the ultimate pen-

results involves the enforcement of a added.)

alty. (Emphasis

84 Idaho at 373 P.2d at 563.

Where the Court Walker v. Nunnen-

kamp at merely expanded protec- first defaulting purchaser

tions for a on the con- “hybrid,” law side of this it then in closing opinion declared for the first estate transactions

time that real should be transactions,

treated as real relief, types, of different accorded prevails in the law of

much the same mortgages.

estate Ellis, solely upon the Court focused blinding form while itself to rights estate and the reali-

substantive real I of the world in which exist.

ties today’s majority

concur in the result again recognizes because it once realities. I cannot

those and those attempt to distin- majority’s in the

concur case should be overruled.6

guish Ellis. That already Viewpoint, only tract —A has been accorded National 6. The Ellis decision Ellis was the rightfully contemporary supportive of the distinction to which some cited as October, 1977, that, In an article statement “forfeitures destined. are still occasional- ” Brigham Young University ly judicially enforced, Law . . . I submit that issue Review, fully published my the J. Reuben Clark Law that article bears out earlier forecast School, giant step Land The Installment Con- that Ellis was entitled indeed a backwards.

Case Details

Case Name: Thomas v. Klein

Court Name: Idaho Supreme Court

Date Published: Apr 17, 1978

Citation: 577 P.2d 1153

Docket Number: 12137

Court Abbreviation: Idaho