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Show MONDAY, JULY 1,1974 PAGE SEVEN INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court of The (Continued from page 6) State of Utah On appeal the evidence is viewed in the light most Utah National Bank of Provo, a banking corporation, Plaintiff and Respondent, favorable to sustain the lower court, and the findings will not be disturbed unless they are clearly against the weight of the evidence or it manifestly appears that the court misapplied the law to the established facts. No. 13216 v. FILED June 25, 1974 Chester Oliver and Mabel J. Oliver.1 Defendants and Appellants. The principle was also announced in Ewell b Son, Inc. v. Salt Lake City Corporation, 27 Utah 2d 188, 493 P. 2d 1283 (1972) where the court said: Allan E. Mecham, Clerk . . . that we are obliged to survey the evidence, and all reasonable inferences that could fairly be drawn therefrom in the light favorable to the verdict and judgment. ' SAWAYA, District Judge: In this matter the court found that the failure of the defendants to disclose the true financial position of the company was a material misrepresentation and was relied upon by the plaintiff as an inducement to grant defendants the loan. An examination and review of the record would indicate that there was substantial .competent evidence supporting the finding of fraud reached by the court and this court will not disturb the finding of the lower court where there is such substantial competent evidence. It is this court's opinion that the other points raised by defendants and upon which the trial court made findings are also supported by the evidence as contained in the record. 4 Plaintiff recovered judgment against defendants upon a promissory note and for foreclosure of properties pledged and mortgaged to secure the note'. The trial court as part of its findings of fact found that the loan evidenced by the note was induced by fraudulent representations of the defendants; that the representations were false; that the defendants knew them to be false, and that they intended their statements would be accepted by the plaintiffs who were at the time ignorant of its falsity and relied upon it to their damage. The principal issue presented on this appeal is defendants' contention that the finding of fraud is not supported by the evidence. The judgment of the trial court is affirmed with costs to the respondents. Plaintiff had on several occasions loaned money to defendants who had an existing lqan balance which became due. They requested plaintiff to renew it and subsequently to grant them a loan for the purpose of consolidating some of their debts. In connection with their application for the latter loan, defendants gave a current personal financial statement and the corporate financial statement of Intermountain Finance and Thrift Company whose stock constituted defendants' principal asset. Defendants were the president and secretary of that corporation and acted both as managers and essentially sole operators of its business affairs. Defendants represented to plaintiff that the financial statements accurately reflected their financial condition as of the time of the application. By a subsequent examination of the company's accounts receivable ledger cards, it was discovered that over $150,000. 00 of accounts receivable needed to be written off. The examination showed WE CONCUR: E. R. Callister, Jr. , Chief Justice A. H. Ellett, Justice . CROCKETT, Justice: (Concurring) : .i i I concur, but I think it should be pointed out that the two cases cited do not stand for the same rule of review. Arising out of the provisions of . our state constitution, and the undeviating decisions of this court, there is a distinction between the rules of review in law and equity. Our Utah Constitution, Article VIII, Section 9, provides: that $100,000.00 in accounts upon which the company and the defendants had received notices of bankruptcy were carried on the books at the time of the financial statements as collectable accounts. The defendants, being essentially sole operators of Intermountain Finance and Thrift Company, had knowledge of the notices of bankruptcy and failed to disclose such knowledge, intending that plaintiff would rely on the statements as given and represented by them. Based upon these facts the trial court made a finding that the failure to disclose the true status of the accounts receivable was fraud. Defendants claim that the evidence does not support such a finding. . ... both law In equity cases the appeal may be on questions of and fact; in cases at law the appeal shall be on questions of law alone. t The case of Hardy v. Hendrickson cited in the main opinion states the rule of review in equity cases wherein this court is authorized to review the evidence, and to make its own findings. See Weise v. Weise, 24 Utah 2d 236, 469 P. 2d 504; Nokes v. Continental Mining b Milling Company, 6 Utah 2d 177, 308 Pr 2d 954; and see discussion by Justice Wolfe in Stanley v. Stanley, 7 Utah 520, 94 P 465. This court has stated many times that the failure to disclose a known fact may constitute actionable fraud. In Elder v. Clawson, 14 Utah 2d 379, 384 P. 2d 802 (1963) we pointed out that: Fraud may be committed by suppression of the truth, as well as suggestion of a falsehood. Silence may become actionable fraud where it relates to a material matter known to the party and which it is his duty to communicate to the other contracting party as a result of a relation of trust or The other case cited, Ewell It Son, Inc. v. Salt Lake City Corp. stands for the rule of review in law cases. Therein the standard rule of review is as quoted, coupled with the further proposition: that if there is any substantial evidence to support the findings and judgment, they will be sustained. inequality of condition and knowledge. Henriod, Justice, does not participate herein. In examining the sufficiency of the evidence to support the findings, some rules of construction have been consistently announced by this court. In Hardy v. Hendrickson, 27 Utah 2d 251,' 495 P. 2d 28 (1972) the court said: 523 Wright. Gary Lynn, Caroline Dr. West Jordan, salesman (Wrights Hobby); Liab $30,152.03 528' klin, aka Calvin F. Johnson 1748 No. 550 West, Clinton, Utah. Small Press Op. (Syro Steel Co.) Liab. $21,486.65; Assets $1375 Exempt $1420; 62474 Assets $1,2UU.25; Exempt $6,575.00; 6207 524 - Jensen, Cardon Ken aka Jensen, 2440 B Avenue, Qgden, Driver C. Ken Washington Terrace, Driver salesman (Jackson Distr. ) Liab. $6,643.91 Assets $1,255.35; Vikki .Lynn 4331 So. 100 West, Washin- gton Terrace, Driver-salesla- & (Town dy Country Snack Vans); Liab $6,433; Assets $1,195.35; Exempt $575; 62174 527 - Walton, Harold Dyke, Jr. 5197 Wesley Road, contractor (F. C. general Torkel-so- n Co.); Liab $24,049 Assets $15,827, Exempt 41,795; salesman, Rawson & Lund Motor Co.; Liab $6526.50 Assets $142; Exempt $100 62474 530 62174 - Colledge, Verlyn Ray aka Verlyn R. Colledge and Ray Colledge, 5193 Fieper Blvd, Kearas, roofer (Superior Roofing): Liab. $4,019.78; Assets $18,510 , 531 Exempt - 62474 532 - Stam, Charlene Pearl Tonge, 1204 Redwood Dr. Scholin Lathe Operator (Parker Packing Co.) Liab. $22,910.67; Assets $23,585; Exempt $510;624 538 LEGAL BRIEFS XEROXED & PRINTED Alphagraphics can copy and collate at H per copy. Overnight Service 28 West 1st South Salt Lake City, Utah 84101 1 Telephone 364-845- Blplaphics 224 South 1300 East Salt Lake City, Utah 84102 2 Telephone 582-828- Barr, 1395 West 1300 So. Unemployed; Liab $3,592.96 Assets $57; Exempt $52. 62574 12 Renter LICKING 7 South 500 East Owner 0FF-D- M LEHMAN 372 No 900 Est Owner Center St. Corp. Liab. $50,143.50; Assets $32,145 Exempt $3,390; 62574 539 Greenburg, Vickl Lynn Shelton, 1507 Sunview Dr. Ogden, School Teacher L. BRIAN E. 5O0 So. 7 HEIDI X. VARNICX 772 Atvood Blvd B 300 West So. 12 Bountiful Power Beatrice Mabey On North 172 W. 125j HUGHES 200 E 550 Esat ON ON South 500 Owner TICHARD 200 BYERS 7 W Esat MICHAEL S. 435 So BRUNO Owner J. POLAND North AD 0CANA C- -2 300 E. 50 West 617 So. Renter 621 So. GRAY Basement 0N-- E. R.DALY W. 100 Renter 79 W. No. East 400 Owner PET Chappel Dr. RIGBY 544 E. 0N-MI- KE Millcreek 0N-J0- HN 340 So. 300 0N-K- EN Renter North Renter REALTY 65O So. 200 453" 3 4 ' 413 E. Oakmont Dr. Owner So. Owner East & TROPICALS W.' ROGERS 997 1749 . 699 No. 1200 So. Main Rneter :!022-- C . 11 --C 130 So. Owner STUART East EN HARGROVE 700 No. ..- -'i No. 200 ;s WESKAMP East NK Renter HIBLER 175 East Owner Renter P. 200 Renter Main Renter BY West 141 No. MULLINS BAESSLER WINN 1192 0N-DA- LE 340 So. H0RT0N Way I. 726 So. 750 East Renter 0N-D- .T. T JEFFERIES So. ., Owner 0N-SC- 0TT MORRISON 144 DA East 400 17 East East Renter ON-LY- LE CANNON AN Renter Way PARKER 0N-T- 0M Main Renter ON DANNY Parker SMITH 1825 Dr. Owner 2084 So. 900 Springcreek Ranter S. East Renter CLAIR DEARDEN 0FF-- L. S. TINGY 224 East 650 No. Owner CN-TH0MLINSGN 1200 So. Canyon Crest Renter TANGREW 726 so. 750 East Owner CN-BI- LL North Owner ON KENNETH 400 K. Ownr ON VELMA 67O WESTMORELAND 2639 So. GIFFORD OFF-BRU- CE OFF-D- 1749 G. J0RGENSEN 50 West Owner 1296 So. Rneter J. CN--M. 224 East ROSENGREEN OFF-PA- UL East 200 No. ! 1 340 So. 050 No. Owner Renter 275 Renter 16 TOBLER QN Esat 78Q JR. 1792 WILBURN, 200 West 300 East Renter 0FF-ELD- LY No Pines JOE ROBERTSON 17 E. 500 105 East QN-LY-LE KEICIOS 4925 Lake So Renter DAY NA Off --GILBERT Center OFF-LAR- RY MKTDKI1T1 250 No. W 7 Owner 425 West Renter E. MULLINS 1749 South 50 West Renter HUNT 115 East 550 17 J. Renter' S0RENSEN GENE EASTMAN T0NI 12 Owner JACOBS ON-A- RT 267 CALHOUN M 0N-J.- H. 5806 Utahna Dr. RAT , . 1500 So. Owner CO. 1441 No. 200 West 405 S. 100 Renter W. A East 22 BANGERTER E So. 784 So. 450 BARRETT Renter Weat Rneter 550 North OFF -- STEVE FENWICK OFF-JI- W 1 ' East Renter 0N-LY- NN 125 HUGHES 1050 No. Murray City Power 100 Renter 200 North OFF-DWA- CASTLEBERRY 61 0N-RU- SS ON-CR- A. MARTINES 172 OFF-JOSE- PH 1825 BRENT Springcreek Dr. Owner Est Renter FLUEHE 62574 D. 435 So. 200 RYGG J. ); (Weber County Dist. ) Liab $50, 143. 50; Assets 432,639; Exempt $3,845; W. . Exempt (Ciba-Gei-gy Summit N. 200 OFF-ROBE-RT $228; 62574 - Greenburg, Raymond Samuel, 15 07 Sunview Dr. salesman APTS 0TD 1792 So. 16 Renter N. GAMBLE 1302 So. 200 West 2 Renter 267 V. BURDINE Ogden, Pharmaceutical - 533 Salmond, Bradley Lowell 375 No. 1 East, Center-vill- e, Utah, Fork Lift Driver (Assoc. Food Stores) Liab $19,879.36; Assets $410; Exempt $95; 62474 534 - Brown, John Joseph 5117 W. 1600 So. Taylor Utah, Chef (Weber Club,) Ogden, Liab $14,816.40 Assets $11,738.40; Exempt $1,460; 62574 535 - Cravens, Margarita Lydia aka Margarita Lydia ' Morgan, Philip Manley ' 1540 Brighton View Dr. Sandy, stock Clerk,' City, Liab $12,672. $8,351.28; 62474 St am, Edward dba Music Sox dba Rose Park Cafe, 1204 Redwood Dr. Cafe, terminated 111573 Liab $31,262.10; Assets $24,088; Exempt $6,260 - Assets $7,338.50; Bountiful Power Renter Harmon Martinez, Byron 355 5th St. Ogden, Exempt $610; 62174 52C - Hunsaker, 537 Fhilb-ert- o, 525 (Dayton Disposal): Liab. $14,209.; Assets $13,706 Exempt $4,237.55; 62074 525 - Hunsaker, John LeNon 4331 So. 100 West, Bankruptcies - Johnson, Calvin Fran- Tuckett, Justice, having disqualified himself, does not participate herein. , 67' East North Owner MURPHY 172 So, 200 West 17 Renter L. KINSMAN 135 No. 300 East Renter HANKS 43 East 1UV So. Owner JENWICK 75 No. |