Harsh v. Neil

McCARTY, J. (after stating the facts as above). The phraseology of the complaint in the first cause of action indicates that plaintiff is seeking to recover judgment for the unpaid balance of the principal — purchase price — and interest thereon, and for assessments and taxes levied against the property during the time defendant 1 was in possession of it. In his prayer for relief he asks for judgment for a sum equal to the assessments and taxes mentioned, and in effect waives judgment for the unpaid balance of the principal. He was permitted, however, to try the cause on the theory that he was entitled to recover for the interest alleged to be due on the unpaid balance of the principal and for damages for breach of contract, and was permitted, over the objections of defendant, to introduce evidence tending to show that the land had depreciated in value. The court ruled the case on the theory upon which it was [538] tried. Findings of fact and conclusions of law were waived by tbe parties, and none were made by the court. The court, however, on its oral decision, said: “The court would not be warranted in finding that this property had decreased in value. There is not anything in the whole history of the case to show that it could decrease in value. * # * It has been improved, if anything. * * * The tendency according to the testimony is that it [the market value] has been upward, instead of downward. There is $1,188 interest. * * # This team and outfit that was * * * turned over to the plaintiff * * * became the property of the plaintiff, and not of the defendant, * * * so there would be $300; that would make $1,488. There has been paid $1,000, which would leave $488 due the plaintiff under the testimony and under the law.” This ease comes within and is governed by the rules announced in the ease of Dopp v. Richards, 43 Utah, 332, 135 Pac. 98. In that case, in a well-considered and somewhat exhaustive opinion prepared by the present Chief Justice, it is said: "Under contracts like the one in question, the vendor has a choice of remedies: (1) An action for specific performance; (2) a suit at law to recover the purchase price, with interest; and (3) to re-enter and take possession of the land, and sue to recover damages for the breach of the contract.” Attention is invited to the numerous authorities bearing on these questions cited in the opinion, which we deem unnecessary to refer to here. In the ease at bar, plaintiff having entered upon and taken possession of the land, and terminated the contract, and declared a forfeiture of the money paid on the purchase price, his remedy, if he had suffered injury in excess 2 of the money paid and the value of the improvements made on the land by defendant, was a suit for damage for breach of contract. He could not, after having terminated the contract, repossessed himself of the land, and declared a forfeiture of the $1,125 paid on the purchase price, [539] successfully prosecute an action for tbe contract price with interest, or any part thereof. Plaintiff, by terminating tbe contract, declaring a forfeiture of tbe money paid on tbe purchase price, and, taking possession of tbe land, waived any interest he bad in tbe team and wagon by virtue of tbe lien represented by the bill of sale, and tbe court erred in rendering judgment 3 for the value of the outfit. The only conclusion permissible from the record is that plaintiff, by terminating tbe contract, taking back tbe land, and declaring a forfeiture of tbe money paid on tbe purchase price, has been benefited rather than damaged. He has received in cash the equivalent of the rate of interest named in the contract on deferred payments of the purchase price; he has had the benefit of approximately $400 of substantial improvements made on the land by defendant, and also the benefit of the enhanced value of the land, which the weight of the evidence tended to show, and the court concluded, had taken place during the time defendant was in possession. The cause is reversed, and, since the record shows that plaintiff is not entitled to recover on any theory recognized by law, the trial court is directed to vacate the judgment and to dismiss the action. Appellant to recover costs. FEICK, C. J., and COEFMAN, THUEMAN, and GIDEON, JJ., concur.