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Show MONDAY, AUGUST 5, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE TWELVE In The Supreme Court of The State of Utah the breeding deficiencies, if any, of Fuyard 1st mus be determined as of May 27, 1968. Any injury or Illness occurring after this date, which affected the breeding capacities of the bull would not be the responsibility of the defendants, and the plaintiffs would not be entitled to recover for such later illness or Injury. will not be applied in a fraud action. The law does not permit a covenant of of Immunity which will protect a person against his own fraud on the ground public policy. A contract limitation on damages or remedies is valid only in the absence of allegations or proof of fraud. The real issue was not the date of the agreement for the sale of the breeding Defendants claim that plaintiffs received a duplicate recovery, since interest in the bull per se but the date of the defendants! warranty that he was a were given an award for a breach of contract concerning the warranty that breeder. The defendants warranted that Fuyard 1st was a breeder on May 27, 1968. they the bull was a breeder, without having paid the full purchase price or acquiring the full interest for which damages were awarded. Defendants claim that they 2, Section U.C.A. 1953, as amended 1965, provides: were entitled to an offset for the unpaid purchase price or the jury should have been instructed to consider this fact in assessing damages. Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing U.C.A. 1953, as amended 1965, the measUnder Section intended by the parties as a final expression of their agreement ure of damages for breach of warranty Is the difference at the time and place of with respect to such terms as are included therein may not be con- - ' acceptance between the value of the goods accepted and the value they would have tradlcted by evidence of any prior agreement or of a contempor-- . had If they had been as warranted, unless special circumstances show proximate aneous oral agreement but may be explained or supplemented incidamages of a different amount. Under subparagraph (3) of this section any case. dental and consequential damages may also be recovered in the proper The written livestock sale agreement sets forth that it is a present sale and that title to the livestock purchased shall pass to the buyers upon execution of the This foregoing provision coincides with the rule in this jurisdiction that agreement. The agreement further provides for the contemporaneous execution of in an action for fraud and deceit the measure of damages is the difference bethe joint ownership agreement with the Keatings to enable the buyers to collect the tween the actual value of what the party received and the value thereof if it had 6 semen of the bull. The agreement further recites that Fuyard 1st Is located at the been as this is the benefit of the bargain rule. Under this rule the represented; Bangart Ranch. The livestock sale agreement was a valid, integrated written con- defrauded party is compensated for the loss of his bargain and is not confined tract between the parties covering the subject matter In dispute. Evidence of any to his damages. prior oral agreement, which contradicts the plain terms of the written agreement is inadmissible under the parol evidence rule, for a party may not establish a differ 1, U.C.A. 1953, as amended 1965, remedies for Under Section ent contract on facts known at the time of reducing their understanding to written fraud or material misrepresentation Include all remedies available under the All form. preliminary negotiations, conversations, and verbal agreements are chapter for nonfraudulent breach. merged In and superseded by the subsequent written contract, and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the Is really twofold. First, It is to "The purpose of this section 1) 3 cannot and Its be terms altered by parol evidence. parties, provide that in actions based upon material misrepresentation or fraud, the remedies available are not limited but are all of those that are available In Part Defendants contend that the t rial court erred In not striking the expert testi- 7 of Article 2.' Second, It Is Important to note from this section that a party of on on Bell the Dr. conversations. mony ground that it was based asserting one cause of action will not be held to an election of7 remedies or actions Dr.. Bell, In fact, testified that his opinion was based on the testimony he had heard .and shall be entitled to all remedies that may be available. 3. Ralnford v. Rytting, 22 Utah 2d 252, 451 P. 2d 769 (1969); also see Wllllston On Sales (4th Ed.), Sec. 13-- 6, pp. 78, 80. halance of the unoaid ourchase or ice was irrele- in fho instant action, the vant in determining the measure of damages to which plaintiffs were entitled. The and the records In evidence. Under such circumstances, his opinion was jury was correctly instructed to determine the sum that would compensate plainadmissible under Rule 56(2), U. R. E. Dr. Bell testified that he had had tiffs for the damages suffered and proximately resulting from the fact that Fuyard conversations with some of the other witnesses out of court, but he based 1st was not a breeder. his opinion on the testimony the witnesses gave in covrt. Defense counsel then queried whether Dr. Bell had relied on anything the witnesses had Defendants contend that the trial court erred in denying their motion for told him in their conversations. Dr. Bell responded that he had relied on a directed verdict on the ground that there was no clear and convincing evidence his conversation with these men in making his judgments. Based on the to support a finding of fraud. foregoing, defense counsel moved that the opinions of Dr. Bell be stricken, The trial court fully Instructed the jury as to all of the requisite elements A survey of the record reveals there was ample evidence therein 8 to constitute fraud as set forth by this court in Pace v. Parish. The trial court could a base which his matter Dr. Bell it is upon expert opinion. Although further explained each of the elements must be proven by clear and convincing of semantics, Dr. Bell may have interpreted the question of defense counsel 5. Clements Auto Company v. Service Bureau Corporation, 9 UCC Reptr.Serv. as to whether the statements of the other witnesses wove reliable for pur189 (1971); Klein v. Asgrow Seed Company, 246 Cal.App. 2d 87, 54 Cal.Rptr. poses ofhls making a judgment. The trial court is allowed .considerable 609 (1966). latitude of discretion in the admissibility of expert testimony, and in the 6. Dilworth v. Lauritzen," 18 Utah 2d 386, 424 P. 2d 136 (1967). absence of a clear showing of abuse, thif; court will not reverse. A chalalso 7. 3A Bender's Uniform Commercial Code Service, Sec. 14.10, p. 14-6- 9; lenge to the reliability of such expert testimony will be considered as not see Official Comment "Purposes: To correct the situation by which remits weight and credibility, which is a matter involving its competency but 4 circumscribed than the more modern and mermore been edies for 'fraud have for the jury to determine. cantile remedies for breach of warranty. Thus the remedies for fraud are ex- breach. . in scope with those for by this section to coincide Jended Defendant contend that the trial court erred in its ruling that paraI. 122 Utah 141. 144-14- 5. 247 P. 2d 273 (1952). evidence and that a failure to prove any one of the elements by such standgraph 4 of the livestock sale agreement did not provide plaintiffs' exclusive 1 ard of proof would require the jury to find against plaintiffs on their comremedy in regard to Fuyard at. plaint of fraud. In Instruction 20, the trial court defined clear and convincThis paragraph contained a representation that the sellers had 1500 ing evidence with meticulous detail. ampules of Fuyard 1st semen on hand on the date of the agreement. The In Child v. Child, this court stated that if the evidence appears to paragraph provided that If the animal died prior to the buyers acquiring 750 so and the each would the that be such that reasonable minds acting fairly, reasonably and in good conscisellers would, adjuet quantity buyers ampules, have an equal amount. It further provided that if the animal died prior to ence could regard it as being clear and convincing as the ordinary meaning the buyers receiving 1500 ampules of semen and the payment of $30,000 on of these words imply, the finding should not be disturbed. The findings and January 5, 1969, was not due, the buyers would be exonerated from such judgment should not be disturbed unless this court can say affirmatively and with some degree of assurance that there is no reasonable basis in the evipayment. dence that could fairly and rationally support the requisite degree of proof, i. Defendants argue that the parties realized and considered the risk of i. e. . by clear and convincing evidence. of death the the bull and, therefore, included a specific provision in case of this contingency. Exoneration of the final payment in the case of the death of A review of the evidence and every reasonable inference that may fairly the bull and tender of one half of the semen Bangarts had on hand should be be drawn therefrom in the light most favorable to the prevailing parties, the plaintiffs' exclusive remedy. It should be noted that Bangarts did not: have plaintiffs, sustains the judgment. The factual issues of this action were vigor' the number of ampules represented. ously contested by the parties; the jury in its response to the special interrogatories clearly indicated which version of the transaction was true. The record amended as Section U.C.A. 1953, 1965, provides is replete with evidence, which if believed by the jury, not only sustains a findthat resort to a remedy as provided in the agreement is optional unless the ing of fraud but also that the action of the defendants was wilful and malicious to be the sole which in It case is is The other points raised in this to exclusive, remedy expressly agreed support an award of punitive damages. of subdivision this where circum(2) section provides that remedy. However, appeal have either been incorporated in other phases of this opinion or do not stances cause an exclusive or limited remedy to fail of its essential purpose, merit further discussion. This court has previously stated that in any lawsuit ' as had the In be act. of several days duration counsel can usually find matters upon which he may provided remedy may claim error, but this court will not reverse on mere error but only if it be The' Instant action was not predicated on the distribution of risk in substantial and prejudicial to the extent that there is a reasonable likelihood case of the death of the bull, but upon breach of an express warranty in parathat unfairness or injustice has resulted. graph 6 of the agreement that the bull was a breeder as well as the fraud of the defendants In Inducing plaintiffs to enter the agreement through their The judgment of the trial court is affirmed. Costs are awarded to 70A-2-20- 70A-2-714(- 2), .... 70A-2-72- (2-72- out-of-co- urt 11 -- -j m JJ 2-7- 21: non-fraudul- , 70A-2-719(l)(- 70A-- 1 -- plaintiffs. 103, U.C.A. 1953, as amended 1965, provides that unless displaced by particular provisions bi th:s act, the principles of law and equity, including the law merchant and the law relative to fraud shall supplement Its provisions. WE CONCUR: U.C.A. 1953, as amended 1965, provides: Remedies for material misrepresentation or fraud include all remedies available under this chapter for nonfraudulent breach. Neither rescission or a claim for rescission of the Section 70A-2-72- ' b), fraudulent misrepresentation. Section ent F. Henri Henriod, Justice 1, 4. Batt v. State, 28 Utah 2d 417, 420, 503 P. 2d 855 (1972). contract for sale nor rejection or return of the good shall bar or be deemed inconsistent with a claim for damages of other remedy. In the instant action, In addition to there being no provision that paragraph provided the exclusive remedy, a contract clause limiting liability 4 l Tuckett, Justice R. L. ' Utah 2d 261, 269. 332 P. 2d 891 (1958). 10. Holland v. Moreton, 10 Utah 2d. 390, 398, 353 P. 2d 984 (I960); Palombl v. D. fc C. Builders, 22 Utah 2d 297, 452 P. 2d 325 (1969). 11. Ewell And Son, Inc. v. Salt Lake City Corporation, note 2, supra. 9. 8 ELLETT, Justice: (Dissenting) i 1 |