Beckstead v. Smith

HALL, Chief Justice: This case is before us on defendant’s petition for rehearing, the Court having heretofore affirmed the judgment of the trial court pursuant to an unpublished Per Cu-riam opinion bearing the date of March 1, 1982, which, by virtue of the granting of this petition for rehearing, is withdrawn. Neither party appeared at the time set for rehearing. Consequently, the matter is considered as submitted on the briefs alone. Plaintiffs entered into a contract dated April 24, 1978, to sell some twenty acres of land to defendant. The purchase price of $245,000 was payable $69,500 down, $50,895 on or before February 2,1979, an additional $50,895 on or before February 2, 1980, and the balance on or before February 2, 1981. Upon receipt of payment in full, plaintiffs agreed to convey title to defendant. Subsequently, on March 16,1979, the parties executed a separate addendum agreement, the language of which is similar, and of equal import, to that of the earlier contract of April 24, 1978. The addendum reads, in pertinent part as follows: [U]pon receipt of said payment ($50,895 due February 2, 1980) Sellers will release to Buyer 4.24 acres of land covered by said contract. The acreage to be released shall be designated by Buyer. [Emphasis added.] Defendant designated the 4.24 acres for release and offered to make the February 2, 1980 payment upon delivery of a deed. Plaintiffs considered the particular 4.24 acres designated by defendant as an unreasonable request and offered an alternative [1004] 5.2 acres in lieu thereof. The evidence is in dispute as to why plaintiffs did not deliver a deed to the designated 4.24 acres, although it is undisputed that defendant did not pay the sum due nor tender his performance. Thereafter, plaintiffs served notice of default, and ultimately initiated this lawsuit. From a judgment in favor of plaintiffs’ terminating the contract, defendant appeals. Defendant’s first contention on appeal is that his duty to pay and plaintiffs’ duty to convey were concurrent acts and that neither could put the other in default without a tender of performance. Defendant further contends that he was excused from tendering his own performance because plaintiffs’ alleged refusal to.convey the designated acreage constituted a repudiation or anticipatory breach of the contract. Defendant cites and relies upon the case of Johnson v. Jones1 as supportive of his position. However, his reliance is misplaced. That case restates the familiar rule of law that: There is implied in an agreement for the sale of real estate, unless a contrary intention is expressed, that the vendor shall retain title until the balance of the purchase price is paid. Where there is an agreement on the part of one to convey and on the part of another to pay a definite sum, payment and conveyance are concurrent acts, unless a contrary intention appears. [Emphasis added.] In the instant case, a contrary intention does appear in the clear, unambiguous terms of the contract of the parties by which they are bound. Plaintiffs’ performance of conveyance is conditioned upon and not concurrent with defendant’s performance of payment. This is to be seen in the language of the initial contract which provides in paragraph 19 thereof that: The Seller on receiving the payments herein reserved to be paid ... agrees to execute and deliver to the Buyer ... title to the above described premises .... [Emphasis added.] Like language is found in the addendum agreement, wherein it provides: [UJpon receipt of said payment, Sellers will release to Buyer 4.24 acres of land The rule of law recited in Johnson v. Jones, supra, causes no hardship on a buyer. If there is a basis for apprehension that the seller will not, or cannot perform, the buyer need only tender payment and demand the seller’s performance. In the instant case, defendant concedes that he made no tender of payment, his remaining contention on appeal being that he was excused therefrom. This is not a case like Century 21 All Western Real Estate v. Webb,2 where the facts were undisputed that the seller refused to convey property free and clear of encumbrances and the buyer refused to pay unless the seller removed the encumbrances. Under those circumstances, we concluded that neither party could default the other without first making a tender of his own agreed performance. In this case, there is a dispute in the evidence. Therefore, it lies within the prerogative of the trial court to determine where the truth lies, and the rules of appellate review preclude this Court from substituting its judgment for that of the trial court in resolving issues of fact.3 There is substantial evidence in the record which supports the conclusion of the trial court that plaintiffs did not refuse to convey, but simply declined to do so unless and until payment was received. Not having made or tendered payment, defendant’s contention of error is without merit. Affirmed. Costs to plaintiffs. STEWART and DURHAM, JJ., concur. Footnotes [1] 109 Utah 92, 164 P.2d 893 (1946). [2] Utah, 645 P.2d 52 (1982). [3] Reimschiissel v. Russell, Utah, 649 P.2d 26 (1982).