Borchert v. Hecla Mining Co.

SHEPARD, Justice. This is an appeal from a summary judgment issued in favor of defendants-respondents in an action filed by plaintiff Borchert alleging forfeiture of a real estate sales contract without adequate notice or opportunity to cure the default, and conspiracy to forfeit Borchert’s interest in the real property. We affirm. The facts are uncontroverted. In 1968, Borchert’s husband was an employee of Hecla Mining Company, and he entered into a real estate contract to purchase, interest free, a residential property. The purchase price was $5,600, payable at the rate of $70 monthly, and evidently no down payment was required. The balance was not to accrue interest unless, prior to payment of the principal in full, Borchert left the employment of Hecla Mining. If he did so leave the employment of Hecla Mining, the contract provided for six per cent interest annually on the unpaid balance. Absent the consent of Hecla Mining, assignment of the contract, rental of the premises, or occupation of the property by anyone other than Borchert was forbidden. Borchert was required by the contract to keep the property in good repair and to pay taxes and fire insurance. The contract included the following language: “TIME shall be of the essence of this agreement, and if the party of the second part [Borchert] shall fail to make each or any of the aforesaid payments promptly when the same shall become due and owing, as hereinabove provided, or if the party of the second part shall violate any of the other provisions of this agreement, then the party of the first part [Hecla Mining] may, at its option, declare this agreement forfeited, and in such event the said party of the second part shall have no further rights hereunder and the party of the first part may take possession of said property and may retain, as liquidated damages for the second party’s breach of this agreement and as rental for the second party’s use and occupancy of the aforesaid property, any and all sums of money which the party of the second part may theretofore have paid hereunder.” Of especial significance to the instant action, the contract contained no “cure” provisions in the event of default. In May 1976, the Borcherts were in financial difficulty, and Hecla Mining agreed to reduce the monthly payments from $70 to $37.50, with interest to be paid at six per cent annually, and the contract was amended accordingly. At that time, Borchert had left the employment of Hecla Mining Company. Following the contract amendment in May 1976, the Borcherts made monthly payments only irregularly and by December 1980, they had failed to pay at least nine monthly installments. In 1981, the Borcherts made no payments. During 1978, Legal Aid contacted Hecla Mining on behalf of the Borcherts, requesting permission to allow the Borcherts to rent the premises. Hecla Mining refused, indicating that the Borcherts would be better off selling the property, satisfying their equity, and remitting the balance owed to Hecla Mining. Borchert’s husband died in early 1981. Hecla Mining had discussions with plaintiff-appellant Borchert both before and after her husband's death, informing her that she was in default and that unless the contract was brought current, [484] Hecla Mining would invoke its forfeiture provisions. The last of these discussions occurred in March 1981. In April 1981, Hecla Mining’s employment supervisor went to the Borchert property to speak with Mrs. Borchert, who was not there. The property appeared to be abandoned. He spoke with Borchert’s daughter, who did not know where her mother was and confirmed that no one lived in the house. He learned that electricity to the house had been shut off and that the utility bills were then five months delinquent. The property taxes had not been paid and there was no fire insurance coverage on the premises. By letters dated June 3,1981 and June 4, 1981, Hecla Mining informed Borchert that she was in default due to her failure to make payments and stated that it planned to reenter and take possession of the premises three days from the date of those notices. Borchert admits that she received those notices from Hecla Mining. Borchert did not tender to Hecla Mining the back payments or the balance due on the contract, nor did she contact Hecla Mining in any way. Hecla Mining took possession of the property and, on June 24, 1981, sold it to defendant Lloyd Gullickson for $2,753.76, that being the balance due under the Borchert contract. Borchert filed this complaint against Hecla Mining and the Gullicksons, alleging that Hecla Mining’s repossession of the property was without adequate notice and opportunity to cure the default. She alleged trespass by Hecla Mining and interference with her attempts to rent or resell the property, and she further alleged that Gullickson had conspired with Hecla Mining “in some manner unknown to the plaintiff,” in order to obtain title to the property- Both sides moved for summary judgment. The court indicated that summary judgment would be granted to the defendants, there being no showing of conspiracy and no provision in the contract giving Borchert the right to cure a default. The court, however, postponed its final decision, in order to allow Borchert to amend her complaint to assert a claim of unconscionable forfeiture. Borchert made no attempt to amend the complaint, and the complaint was dismissed with prejudice on June 26, 1984. The only issues validly raised on this appeal are the legality of the default procedure under the contract and the trial court’s interpretation of the contract’s default provision. The contract makes no provision for the vendee to cure any default. We note that Hecla Mining informed Borchert, in May 1981 and before, of Hecla Mining’s intent to repossess the property. That repossession did not occur until June 1981. We find nothing in our statutes or in the common law requiring a seller to provide an opportunity to cure a default. As stated by the Court in Prairie Dev. Co., Ltd. v. Leiberg, 15 Idaho 379, at 394, 98 P. 616, at 621 (1908): “We are not aware of any authorities which hold that where time is made of the essence of a contract, and. payments are not made in accordance with such contract, that the other party is required to serve notice upon such defaulter of the intention to declare such contract forfeited unless the payments be made in accordance therewith, and that a reasonable time must be given for complying with said contract.” Accord Papesh v. Wagnon, 29 Idaho 93, 157 P. 775 (1916). Borchert relies heavily upon Rush v. Anestos, 104 Idaho 630, 661 P.2d 1229 (1983). There the Court held in dicta that, if a real estate contract does not specifically set the time for curing default, a reasonable time will be allowed. Rush is distinguishable from the instant case, since in Rush the escrow instructions required the seller to provide formal notice of default and granted the vendee an opportunity to cure the default. Here, while the contractual provisions are arguably harsh, there is no assertion by Borchert that they are unconscionable. The contract did not require a down payment and the monthly payments were cer [485] tainly modest. At a time after the contract had been signed and in effect, Hecla Mining agreed to and did amend the contract to reduce those modest monthly payments by nearly 50%. Even those reduced payments were severely in arrears. The property had been abandoned. The taxes and the fire insurance had not been maintained, thereby placing Hecla Mining further at risk. There is a total lack of any indication that Hecla Mining profited by its reentry of the property and the resale, or that Hecla Mining was unjustly enriched at the expense of Borchert. To the contrary, the record demonstrates that the property was resold to Gullickson for only the balance remaining due under the original contract. We will not rewrite the parties’ contract for them and, where as here, it is unambiguous, it will be enforced according to its terms. Christensen Motor Sales, Inc. v. American Motor Sales, Inc., 108 Idaho 102, 697 P.2d 442 (1985); J.R. Simplot Co. v. Chambers, 82 Idaho 104, 350 P.2d 211 (1960); Durant v. Snyder, 65 Idaho 678, 151 P.2d 776 (1944). We have considered plaintiff’s other assertions of error and find them to be without merit. The decision of the trial court granting summary judgment for defendants is affirmed. No costs or attorney’s fees on appeal. DONALDSON, C.J., concurs. BAKES, J., concurs in result. BISTLINE and HUNTLEY, JJ., dissent.