Anderson v. Colman
Anderson v. Colman
Opinion of the Court
Appeal from a judgment for plaintiffs, that upon tender of payment to defendant, Colman, interests in property under a real estate contract executed between Colman and United Park City Mines Company, should be acquired by plaintiffs. Affirmed, with costs against Colman, to plaintiffs.
The record shows that prior to August 10, 1965, plaintiff, D. C. Anderson, spent approximately 125 hours in time, plus gas and oil, mileage and other expenses in locating certain Park City properties. He then negotiated a contract for the purchase of the properties in the amount of $10,000 payable to United Park City Mines at the rate of $2,500 down and $750 annually for
Thereafter, D. Scott, a party plaintiff in this action, indicated his desire to purchase one half of Anderson’s interest in the properties for $5,000. To effectuate this transaction with Scott, Anderson obtained an assignment from Colman and his wife for $10 consideration of “one-half of all their right, title and interests” in the properties. The assignment was dated March 25, 1966.
At the bottom of the document containing the aforementioned assignment is found the following conditional language, which was signed by Anderson, Anderson’s wife and Scott:
In consideration of TEN DOLLARS (10.00) and other good and valuable consideration D. C. Anderson and Ellen R. Anderson, his wife, and Dan Scott hereby agree that in the event either D. C. Anderson and Ellen R. Anderson and or Dan Scott fail to pay their pro-rated share of the payments which accrue under the terms of the referred to contract due August 10, 1966 through August 10, 1975 then William J. Colman may make same, and that thereafter D. C. Anderson or Dan Scott shall have no further right or obligation in said contract or assignment of contract interest, but that by making the payments William J. Colman may succeed to all of D. C. Anderson’s and Ellen R. Anderson’s and Dan Scott’s interest in the assignment and contract.
This latter paragraph was apparently inserted upon the assignment by Colman and was likewise dated March 25, 1966. There was no new consideration given for signing the latter paragraph. Although Col-man stated at trial that the lower half of the document was signed before the unconditional assignment in the prior paragraph, Anderson and Scott testified it was executed afterwards. The trial court found that Scott’s signature was in fact notarized one day after March 25 in Wyoming.
Over concern about the lateness of Col-man’s payments under the contract, Anderson and Scott purportedly made several offers to make the payments themselves to avoid default. The record shows that Col-man made all payments up to the time of this litigation.
In 1970 Anderson and Colman became at odds, so Anderson tendered the amount due to United Park City Mines and requested a deed for one half of the property. Colman advised the Mines Company to disregard the request. The trial court construed a phone conversation between Scott and Col-man in which Colman allegedly assured Scott as to the currency of payments under the contract, as recognition by Colman of Scott’s interest, and, hence, Anderson’s interest from whom Scott took, in the property.
Colman claims Anderson defaulted under the “plain terms” of the contract when Anderson refused Scott’s request to make part of the payment due in August of 1966. The record indicates that Colman evinced no intention to foreclose their interests in the property prior to Anderson’s tender of full payment in 1966.
The trial court held that if Anderson should pay into court his one half share of the payments, plus interest, taxes and survey expenses on or before January 20, 1973, then Anderson and Scott would take their respective one-fourth interests in the property.
In Continental Bank and Trust Company v. Stewart,
. 4 Utah 2d 228, 291 P.2d 890 (1955).
Reference
- Full Case Name
- DeWayne C. ANDERSON, and v. William J. COLMAN and United Park City Mines Company, a corporation, and Appellants Dan SCOTT, Cross-Claimant v. DeWayne C. ANDERSON and Ellen R. Anderson, his wife, Cross-Defendants
- Status
- Published