Rubel v. Peckham

PEEK, J.

This is an appeal by defendants from a judgment ordering them to specifically perform an agreement relating to the sale of certain real property owned by them in Tuba County. In addition, the judgment awarded damages to the plaintiff Rubel for his loss of use of the land by reason of defendants’ failure to convey and allowed the plaintiff Hall a real estate broker’s commission for his services in connection with the transaction.

The agreement which formed the basis of plaintiffs’ complaint was entered into by the defendants and Hall and among other things provided that defendants would transfer and convey said land to any purchaser obtained by Hall who, by the terms thereof, was constituted defendants’ agent to sell the land on the terms and conditions therein set forth. Defendants’ answer admitted ownership of the property described in plaintiffs’ complaint, admitted the execution of said agreement but denied that the description set forth therein was the same as that set forth in plaintiffs’ complaint; denied that Rubel had been damaged by their failure to convey or that Hall had been damaged and affirmatively alleged that prior to the commencement of the action defendants offered Rubel the possession of the property, without prejudice to his right to litigate the question of the easterly boundary thereof, but that Rubel refused said offer and that defendants have at all times been ready, willing and able to convey said land in accordance with the terms of said agreement.

From the record it appears that by reason of defendants’ willingness to convey as averred in their answer and the state

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ments and communications of their counsel the case was tried upon the theory that defendants were under a duty to convey the land in question. Thus there were but two real issues before the trial court, (1) whether or not the description of the land as set forth in said agreement was intended to be and actually was the same as the metes and bounds description by which the land was described in plaintiffs’ complaint, and (2) the issue of damages, both as to Rubel and Hall.

On appeal, however, the primary contention made by appellants is that as Rubel was not a party to said agreement he had no rights thereunder which he was entitled to enforce. But, as stated, since the case was tried upon the theory that a liability existed to convey the property to Rubel such contention cannot now be raised for the first time on appeal.