Nielsen v. Rucker

333 P.2d 1067, 8 Utah 2d 302, 1959 Utah LEXIS 253
CourtUtah Supreme Court
DecidedJanuary 20, 1959
Docket8817
StatusPublished
Cited by8 cases

This text of 333 P.2d 1067 (Nielsen v. Rucker) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nielsen v. Rucker, 333 P.2d 1067, 8 Utah 2d 302, 1959 Utah LEXIS 253 (Utah 1959).

Opinions

WADE, Justice.

Plaintiffs, Mr. and Mrs. Nielsen, respondents here, sued defendants, Mr. and Mrs. Rucker, for specific performance of a contract to exchange the Nielsen Dairy Farm, north of Brigham City, Utah, for the Ruckers’ home, fourplex apartment [304]*304house, and motel in Tremonton, Utah. The trial court decreed specific performance. The Ruckers appeal, contending that if there was any contract agreed upon, it is too indefinite and uncertain to be enforced by specific performance.

The original contract is awkwardly written on a real estate form entitled “Earnest Money Receipt and Offer to Purchase.” Under this contract the agreed purchase price of the respective properties was $95,000, with a mortgage against the Rucker property of about $19,000, and a lien against the Nielsen property of about $29,000. The difference was to be paid in monthly installments. Each party to clear all liens from the personal property given by such party in the exchange. This contract was dated March 14, possession to be transferred April 5, 1957. The sale was arranged by the Real Estate Exchange of Ogden, Utah, and each party agreed to pay a 5% broker’s commission on $95,000.

At the time of making this agreement the livestock and equipment of the dairy farm was subject to a chattel mortgage with a balance of $8,454.54 owing. Under its terms the mortgage became due December 1, 1957. The Nielsens were unable immediately to borrow the money to pay this mortgage off. Thereupon, on March 30, 1957, the Ruckers had the real estate agent draw a supplemental agreement, by which they agreed to assume and pay the chattel mortgage, and to take mortgages on the home, motel and fourplex from the Nielsens to repay for such assumption and the differences in the indebtedness against the respective properties. Under this supplemental agreement the Nielsens agreed to pay such mortgages at the rate of $150 per month. The supplemental agreement was duly executed and signed by both parties. Nothing was said in such agreement about when the payment of the chattel mortgage which the Ruckers agreed to assume was due or when the Ruckers would be required to pay it, but there is evidence that they were under the impression that they could pay it off at the rate of $175 per month, and that they did not know until about the 3rd of April, 1957, that this mortgage became due on December 1, 1957. Thereafter each party made preparation to make the exchange, by moving some articles to the other property until the evening of April 5, 1957. But on the morning of April 6, 1957, the Ruckers decided to refuse to make the trade and their attorneys by telegram so informed the real estate agency.

Since then the real estate agency has held conferences with both parties, urging them to complete the deal, and have submitted to each written instruments to be executed in effecting the exchange. The Nielsens have been willing to complete the exchange and have signed the instruments submitted to them to that end by the real estate agency, and have offered to execute [305]*305all instruments and to do all acts required by the contract to effect the exchange, and have urged the Ruckers to complete the exchange. On the other hand, the Ruckers have unconditionally refused to consummate the exchange. The Nielsens instituted this action to enforce specific performance. The trial court found the facts in plaintiffs’ favor and decreed specific performance and the defendants prosecute this appeal.

The Ruckers contend that the trial court’s findings of the facts are not in accordance with the evidence. They urge that since this is an equity case and the appeal is on both law and facts, we should carefully review the evidence. This we have done and conclude that the court’s findings of fact are amply supported by the evidence and that there is no basis for us reversing such findings.

Appellants in support of their claim that the contract is too indefinite and uncertain for specific performance make three contentions :

First, they argue that the description in the contract, “The dairy farm owned by Glen Nielsen and wife” does not definitely identify the Nielsen land to be traded. They point to Exhibits “E” and "F” which are instruments drawn by the real estate agency and signed by the Nielsens to consummate the trade. Exhibit “E” purports to assign the Nielsens’ ownership in their farm acquired under an escrow agreement between the Nielsens and LuRoy P. Deem and wife. Exhibit “F” purports to convey the dairy farm by warranty deed from the Nielsens to the Ruckers. The descriptions of the farm in both of these instruments contain only three tracts of land with a total of only about 52 acres. However, the trial court decreed that the Nielsens convey to the Ruckers four tracts of land containing in excess of 110 acres.

The evidence shows that the real estate agency in drawing these exhibits by mistake described only three of the four separately described tracts of land which constitute the Nielsen Dairy Farm. No one at the trial claimed that the three tracts included all the land which constituted the dairy farm. The contract Exhibit “A” referred to “The dairy farm with all equipment as per listing cards.” The listing card Exhibit “X” uses the following terms : “Location three miles north of Brigham City * * * Owner Glen Nielsen * * * Occupied by owner * * * Total acres Mortgage 1 110 * * * Contract J Bal. $29,000 due Nov. payable to William Dean @ $2,000 per year * * (Emphasized words in handwriting, other words printed.)

The evidence without dispute clearly identifies the land described in the decree as the Nielsen farm. It is the only dairy farm which they claim north of Brigham City or [306]*306elsewhere. They claimed ownership by reason of a title retaining escrow agreement on which there is a balance owing of about $29,000. This is in accord with the Mortgage 1 words Contract J one above the other with a brace after the two words which indicates that there is a mortgage or contract under which a balance of $29,000 was still owing. Yearly payments of $2,000 became due from 1958 each November. The Nielsens were occupying the dairy farm when the listing card and contract were made. The farm has a total of slightly more than 110 acres. The only incorrect statement in the listing card is to the effect that the payments were to be made to William Dean, whereas the evidence shows that the escrow agreement payments were payable to Lu-Roy P. Deem and wife. This is obviously a scrivener’s error in making the listing card. At the trial plaintiff introduced in evidence the escrow agreement, Exhibit “D,” wherein the Deems and the Nielsens delivered in escrow necessary title papers to the Nielsens’ property to the Box Elder County Bank to be delivered to the Nielsens upon the payment of the purchase price as therein specified. This agreement contained a description of the Nielsens’ dairy farm in accordance with the decree of the court, including four tracts of land and slightly more than 110 acres. From the foregoing facts we think it clear that the property described as the Nielsen Dairy Farm is definitely and fully identified.

In the recent case of Johnson v. Jones, 109 Utah 92, 97, 164 P.2d 893, 895, we quoted with approval from Cummings v. Nielson, 42 Utah 157, 129 P. 619, 622, as follows:

“It is elementary that in equity that is certain which can be made certain.

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Related

Hackford v. Snow
657 P.2d 1271 (Utah Supreme Court, 1982)
Eliason v. Watts
615 P.2d 427 (Utah Supreme Court, 1980)
Cheney v. Rucker
381 P.2d 86 (Utah Supreme Court, 1963)
Nielsen v. Rucker
333 P.2d 1067 (Utah Supreme Court, 1959)

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Bluebook (online)
333 P.2d 1067, 8 Utah 2d 302, 1959 Utah LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nielsen-v-rucker-utah-1959.