Hansen v. Kohler , 1976 Utah LEXIS 836 ( 1976 )

ELLETT, Justice

(dissenting in part).

The main opinion makes a complicated case out of that which seems so simple.

Respondent Kohler was a real estate broker for Robinson in the sale of a four-plex to Hansen. The agreed price was $39,400 with a down payment of $7,500 represented by the transfer of a house owned by Robinson.

The title search showed that the house was subject to a mortgage and the parties changed the agreement whereby Hansen would give his Thunderbird automobile to Robinson and prepay a future installment on the four-plex.

Robinson did not want the house and had some problem about paying Kohler his commission so he and Kohler agreed that Koh-ler would take the house, cancel the commission due, and would pay Robinson the sum of $2,000 cash.

The only change in the contract between Robinson and Hansen was the giving of the Thunderbird car and the advance of the future installment on the contract. ' Hansen still got his $7,500 credit for the house. However it was agreed between all parties that the house would be deeded to Kohler instead of to Robinson. This change of grantee in the deed was of no concern to Hansen as he simply deeded it to the person designated by Robinson. Hansen still got his $7,500 credit on the four-plex.

If there was any bargain on behalf of Kohler, it was at the expense of Robinson and is of no concern to Hansen.

The Thunderbird automobile was given in order to save the deal as Hansen wanted the four-plex and Robinson did not want a house with a mortgage on it.

If Hansen lost anything at all, it was not to Kohler but was to Robinson and consisted of his car. That loss seems to have been voluntarily sustained to make up for the fact that the house was incumbered by a mortgage. While Hansen eventually paid the mortgage, it was not done until after the agreements were made.

If there is anything given in trust to guarantee that the mortgage would be paid, it is the Thunderbird — not the house.

I would affirm the trial court in holding that Hansen had no claim against Kohler. I concur in the result as to the holding that the Pierces have no right to recover against Hansen.

HENRIOD, C. J., having disqualified himself, does not participate herein.