(concurring and dissenting):
I concur in the result of the majority opinion which requires the plaintiffs to accept the tender of money made by the defendant and to release their mortgage on the remaining lots. I place my concurrence on the ground that although the evidence was conflicting, there was competent evidence adduced that the delay in performance by the defendant was caused by both plaintiffs and defendant, and that both parties acquiesced in the delay right up to the time when the defendant tendered his money to pay for the remaining lots.
In answer to the plaintiffs’ claim that they are entitled to attorney’s fees because they successfully defeated several of the defendant’s causes of action which he stated in his counterclaim, that fact alone does not make the plaintiffs the “successful party” in the action. I say this because the plaintiffs failed to recover anything on their complaint and the defendant was awarded specific performance on the fourth cause of action of his counterclaim. It is not necessary that the defendant win on all of the causes of action which he stated in his counterclaim. It is only necessary that he prevail on one of them to become the “successful party” in the lawsuit. This is especially true in this action where the several causes of action pleaded in the counterclaim were seeking alternative relief. Some sought damages and others sought specific performance. Defendant could not expect to prevail on all of them. See Checketts v. Collings, 78 Utah 93, 1 P.2d 950 (1931).
I dissent, however, from the majority opinion wherein it affirms outright the judgment of the trial court. The real estate contract provided that the defendant not only pay for the property but also that he “forthwith subdivide the same, bonding himself to pay for all necessary improvement.” The performance of this promise is part of the consideration that the plaintiffs are entitled to receive in addition to the price of the land. Plaintiffs reserved five lots but their value will be diminished if the defendant does not “forthwith” construct improvements in Addition No. 2 so that there will be access to those lots and the utilities available. Plaintiffs are, of course, obligated to pay for the improvements on their five lots, but it is also of value to them that the improvements on the other lots be completed. Also, Mr. Sears, one of the plaintiffs, has a separate sales agency agreement with defendant to sell the completed houses built on the property. Therefore, it is important that the defendant be required to build and complete houses on the remaining lots in Addition No. 2. I would remand the case to the trial court for the judgment to be amended to include an appropriate order that the defendant construct the improvements in Addition No. 2 forthwith, and proceed to build houses on the lots he purchased in accordance with the real estate contract.