Utemark v. Samuel

SHINN, P. J.

In this action plaintiffs had judgment for the rescission of a contract to purchase unimproved land for $10,000. The reason for the rescission was that while plaintiffs performed and offered to perform their agreement, the defendants refused to perform and to give a deed upon tender of the purchase price.

The date of the agreement was September 14, 1946, and the date of the judgment, January 24, 1952. During this interval plaintiffs were in possession and made valuable improvements, consisting of the construction of a shop for a welding business, and the installation of a small office building.

The court rendered an interlocutory decree May 17, 1950, by which rescission was decreed and a referee was appointed to take evidence and report upon: (1) The reasonable value of the usage of the land while plaintiffs were in possession; (2) the present market value of the land and buildings; (3) the value of the building apart from the land; (4) the cost to plaintiffs of construction of the building; (5) the value of the buildings removed from the land and the feasibility and cost of removal; (6) knowledge of defendants at the time of the sale as to the uses plaintiffs intended to make of the property. 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,

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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 T, 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. Prom 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.