Dick v. American National Mortgage

510 P.2d 1096, 29 Utah 2d 404, 1973 Utah LEXIS 819

Opinions

TUCKETT, Justice:

The plaintiffs were the vendees named in a uniform real estate contract and they commenced these proceedings in the court below seeking damages for the breach of the contract and attorney’s fees. From a summary judgment entered in favor of the defendant, plaintiffs appealed.

Under the terms of the contract entered into by the parties, plaintiffs agreed to pay the sum of $5,700 for the real property described in the contract. After the down payment the plaintiffs agreed to pay the sum of $50 per month until the purchase price was paid in full. There was an obligation in the sum of $3,600 owed to LeRoy and Jean E. Soelberg by the defendant which was an encumbrance on the property. The plaintiffs became apprehensive that the defendant would fail to make its payments to the Soelbergs, and commencing October 1, 1965, the payment of $1,000 was made to the Soelbergs. Thereafter the plaintiffs made three additional successive annual payments on the obligation owed by the defendant to the Soelbergs. The total payments made to the Soelbergs and to the defendant completed the payments due under the contract except for a small balance. At the time these proceedings were pending in the district court, the defendant offered to waive the small balance due and tender to the plaintiffs a conveyance of the title.

The plaintiffs were not obligated to make the payments to the Soelbergs, and it does not appear that the payments were made at the request of the defendant. It is the plaintiffs’ contention that they are entitled to recover interest on the payments made to the Soelbergs inasmuch as those payments exceeded the payments due under thc contract with the defendant, and also they are entitled to an attorney’s fee. Plaintiffs made the payments to the Soel-bergs without any obligation to do so under the terms of the contract, and they did so as volunteers. The record does not reveal a breach of the contract by the defendant. There being no genuine issue of fact the court below correctly entered a summary judgment.¹

The judgment of the court below is affirmed. Respondent is entitled to costs.

CALLISTER, C. J., and HENRIOD and CROCKETT, JJ., concur:

1

. Dupler v. Yates, 10 Utah 2d 251, 351 P.2d 624.