Utemark v. Samue

257 P.2d 656 (1953)

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Nature of the Case

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Facts

P and D entered into a contract for the purchase of unimproved land. P performed and offered to perform the agreement. But D refused to give a deed to P upon tender of the purchase price. P sued D for rescission. The date of the agreement was September 14, 1946, and the date of the judgment, January 24, 1952. The trial judge rescission on May 17, 1950, and ordered a referee to take evidence and report to the court. The referee reported: (1) That the reasonable value of the use of the land, unimproved, was $50 per month; (2) the reasonable value of the use of the land after it was improved by plaintiffs was $286 per month; (3) the present market value of the land with the buildings was $11,650; the value of the office building was $250; (4) there were no other improvements which would enhance the value of the land; (5) the value of the office building removed from the land was $250; (6) the fair market value of the shop building was $6,400; (7) he could not determine whether it would be feasible to remove the shop building. The court found: (1) $10,000 was a fair price for the land at the time of the purchase; (2) plaintiffs had complied, and offered to comply, with the agreement; (3) defendants failed and refused to convey the land; (4) plaintiffs gave due notice of rescission and offered to make restoration; (5) plaintiffs had paid $6,419.30 on the contract price, $508.42 as taxes, and a real estate commission of $500; (6) cost of the improvements placed on the land by plaintiffs was $12,154.41 (these items total $19,582.13); (7) the value of the shop building was $6,400, and of the office building, $250; (8) present value of the land and improvements was $11,650; (9) the rental value of the land from September 14, 1946, to July 14, 1947, was $50 per month, or $500; the rental value of the land and shop building from July 14, 1947, to December 1, 1947, was $1810 ($810); for the land and shop from January 1, 1948, to December 31, 1948, $2,600, and from January 1, 1949, to August 30, 1951, $135 a month, or $4,320. According to these figures, the total rental value was $8,230. The court then added $6,419.30, the amount paid on the contract, $508.42 taxes paid, $500 commission paid, $6,400 the present value of the shop building, and $250 the value of the office building, making a total of $14,077.72. From this sum was deducted $8,230 as the value of the use of the land and buildings, leaving a balance of $5,847.73, the amount for which plaintiffs were given judgment, which was declared to be a lien on the land. P was ordered to pay $500 as half of the fee fixed for the referee, and D was ordered to pay the other half. The amount of the fee was declared to be a lien on the land. P appealed: the court erred in not restoring them to their original position by giving them judgment for the sums they had expended under the agreement, including the reasonable cost of their improvements which became attached to the land, and that it was error to require them to pay a part of the fee of the referee.