Clegg v. Lee

CROCKETT, Justice

(concurring and dissenting) :

I agree with the affirmance of the ruling of the trial court that there is no tria-ble issue as to fraud in the inducement of the contract. However, I do not agree that the trial court was justified in granting summary judgment as to other issues. I avoid burdening this lone dissent and the printed page with any extensive recitation of plaintiffs’ claims as to the facts upon which they sought to enforce their right to purchase the property. But, as will appear Jporn the main opinion, these points are salient: that there were extended negotiations between the parties concerning the purchase of the home of Mrs. Lee; that quite different from the usual case of the forfeiture of a real estate purchase contract, she remained in the possession of her home, and meanwhile accepted payments aggregating over $5,000; that in seeking forfeiture she relies on notices of only five days, and reciting forfeiture to be an already accomplished fact; and served after the commencement of this action.

This is a case in equity. It may well be that upon a trial of the issues, the trier of facts would find the defendant’s actions to be unreasonable and arbitrary, and refuse to enforce the forfeiture. See Wingets v. Bitters, 28 Utah 2d 231, 500 P.2d 1007. Consequently, I think there are disputed issues of fact which should have been tried.