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• Title: Michael Scott v. George C. Castle Sawtooth
• Author : Court of Appeals of Idaho No. 14167
• Release Date : January 26, 1983
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 67 KB

Description

Michael Scott appeals from an order of the district court, granted after a trial, denying him preliminary and permanent injunctions against a trustee's sale under a deed of trust, denying his requests for an accounting and for declaratory relief, and ordering a hearing on damage claims made by each party against the other.[Footnote 1] He contends the court erred in entering the order, for the following reasons. First, Scott argues that he was not obligated to make the payments required by a contract for the purchase of real property and promissory note either (a) because George Castle, the seller, had breached his obligation to assist Scott in complying with a county subdivision ordinance; (b) because Scott and Castle modified the terms of payment by oral agreement and by their conduct; or (c) because Castle waived his right to demand strict performance of the payment provision by his conduct and is therefore estopped to pursue his remedy of trustee's sale under the deed of trust which secured the note. Second, Scott contends that the trustee's sale should not be permitted to go forward because Scott would suffer irreparable injury for which he could not be adequately compensated with money damages. Finally, Scott argues that the court erred in finding that he had no agreement with Castle to exchange an additional ten acres of Castle's property for property to be selected by Castle and purchased by Scott. Additionally, the respondent Castle has requested an award for reasonable attorney fees for representation on this appeal. We affirm and award attorney fees to the respondent. On November 3, 1978, Scott entered into an agreement to purchase from Castle twenty acres of real property located in Blaine County. Castle was aware that Scott intended to subdivide the property and to sell the lots at a profit. In addition to the contract, Scott signed a promissory note secured by a deed of trust on the property sold by the contract. Both the contract and the note provided that Scott would make five annual payments of equal amounts. There were no contractual provisions imposing conditions on the payments. The dates of payment varied between the contract and the note but the parties did not dispute that the first payment, of more than $35,000, was due on February 17, 1980. This payment was not made. In January, 1980, Scott had learned that dividing Castle's property, by sale of part of it to Scott, did not comply with an applicable county subdivision ordinance. He then informed Castle that he would not make any payments to Castle until the requirements of the ordinance were satisfied and the property could be developed. Castle's only response was to inquire as to the length of time which would be required to achieve compliance. However, a $5000 payment was made by Scott to Castle in April, 1980. No further payment was made.

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