Chournos v. Evona Inv. Co. , 97 Utah 335 ( 1939 )

I dissent. In this case there was connivance by L.L. Keller for the purpose of ousting Chournos, joint holder of what the prevailing opinion holds was a contingent option, from exercising that option and for the purpose of getting the title solely in the name of his son and away from Chournos. The net final result seems to be that he succeeded. That does not seem to comport with the dictates of fairness.

The interest of Keller and Chournos in the property was a community interest, both as to the lease and as to the contingent option. Regardless of the personal feelings of the members of this community, neither could do anything adverse to the community interest for his own advantage. Any advantage which in the end either gained by such adverse conduct as against the other, equity would not permit him to retain. And even if both parties to the common interest were secretly or openly trying to put the other out of that interest by attempts to use the third party for that purpose, the one who succeeded would have no standing in equity as against the other; for the principle that equity would leave them where it finds them does not apply in such case. See note, 4 A.L.R. 58. But in this case the plaintiff may have made his offer because of his very suspicion — evidently well-founded — that L.L. Keller was acting through Lloyd Keller and to protect himself.

Granted the correctness of the holding that before the Company's notice of December 23, 1936, there was only a contingent option and that the option came into effect only by that notice, the fact remains that said option was stimulated by the scheme of L.L. Keller and had its initiation therein. If the company was an innocent party, the option could be considered as having arisen as to it. But as between Keller and Chournos the notice of option cannot be considered as raising any duty on the part of Chournos to meet a figure which came about through the scheme of Keller to elbow Chournos out of his interest in the contingent option. Keller cannot in any case end up with an advantage over Chournos which has its roots in his own machinations. If Keller had himself offered $6100 and thus attempted to mature the inchoate option, Chournos would not be bound by any supposed efflux of time fixed in a notice from the Company stimulated by such offer. Or if Keller had by letter used a fictitious person to do so, the answer would be the same. Nor can he by stimulating a third person to make the offer for the purpose of ousting his other community member, or gaining an advantage, claim that the Company was free to sell to him because of a claimed expiration of time limit based on a notice which arose because of his tactics adverse to the common interest. Nor can Chournos be said to have treated the option and time limit contained therein as having been properly made because he too made a competitive bid. He was put in the position of having to do so by the acts of Keller initiated in subterfuge.

Whether or not the Company was innocent of the fact that L.L. Keller was acting through Lloyd Keller, it desired to sell the property for $6100 and did so. Both Chournos and the Kellers are before the court; the Company is out of it. All that remains is for equity to do justice between these two parties. And the simple and fair solution is to require Lloyd Keller to convey to L.L. Keller and Nick Chournos on the payment of $6100, to be contributed by them equally, the entire property, or if L.L. Keller desires to forego his half interest and leave it with his son, then an undivided one-half interest to Chournos on payment of $3050. The joint asset then becomes one to be liquidated as other partnership or joint venture assets. If it can be sold for more than $6100 each shares in the gain. For the above reasons I dissent.