OCR Text |
Show WEDNESDAY, JUNE 10, 1970 PAGE I Financing Statements Unison, 7510 7 i?00 .v, S A Jor-cj- rn to .fltns Fin: hh arts .osnusfsnri S 2nd W, 3quio, to sLc .rwit J Porter. 1.1 jr.ii;t, .1 civile to 3e?bord Fin; cons mis ; rlvr j iVeidier, . 1275 H.lmirirtori to nationwide Mr.; hh ds EJc rt 5vi Ar; Aye bo-- t trir 7er5.il . La vis. 53Cm Chriotte, sic to 'ticffiuido Fin; hh rds bth S, sle to Larry a Staten, 2013 den rin; hh rds Hh Sale Riverton to 3 Redwood wrmn Mr: Stereo to Valuer . ..rl'.'li i7 "ccl' t i t.'i t Mr J::is ?. ...ti sic V, ds ., . .Jlllimis. J ; ,r.o"-fflin- '.'sort J to Li pert ' ii Le-'i- U-- ; jeu Jr; 4:: 72 hh rds :ur.t, 429 hh ards 7, .veprr.s .; . duett, 4CL:4 S Redwood Rd, 2530 5t, sic to 31 L Pi; cor. s sle hh mis -ds .ichael . osack. Ill cetr.a fi:i; Sn o'. mo bile 0 S, Sandy to iiy-j- S, sic to "7 1 'A -- 1 it llmar. A LeRoy 3 j;ir-7-, tol In; furr. A S15 i 13thJ, sic to Jaoi- -! apnl eauip L S.iostrnnd, 723 Loafar. Ave, sic to Caoitol. Thrift: apnl fum equio .irjia ti Aquarius Ltd, 6412 Lombard v Dr, sic to bill Rash Ind Repair; Rquio A 7, sic to S, J.sanu 5175 b400 S, .:urray to ?ur.s , 39 7er jrjn Via srihum , 3941 1st. 3ec ik; 17 Almie Crayton J Campbell, 3159 M?na to den Fin; i. 5th 3, sic to 5 tr.nrtep Sr, sic j Ire jarff, 4840 3 Fbuntains sic to Oont Sk; Camper : (! ads Core, Jr.ield, irterrtn Sr.ownobiles ..Sin, sic to Scott j ! jr rds .jiirotto ..itc.ilJ., 477s to f.a. col,:'. Fir.: hh rds L 4755 S rrir I.ioor1'r in: Geo 1 . .1 3 I j 2ol0 i. sic to 33 A r,"rd "ahr,hh 1534 lj 11 hh racific An; tu .o 43o4 a icholl, I j:d Jr; .r,. , ilhertn t- - cons rds .V.c . fact-finde- sLc 1, Dr 171 5 91 CO W, .'aTvn. . sic to An; inulton, 3030 S 1st Sec bk; hh gds Raymond R to Valley 5!dward F5.n: Seville, 393 3k; Camner Stas, 2974 A hh sds 8950 W Kaipia This court has held that in determining whether or not there is an original promise (not within the Statute of Frauds) or a collateral promise (within the Statute of Frauds) under a given set of facts, the intention of the parties governs. In most cases, the question of intention is a question of unless the relationship is so clear fact for determination by the from the language used, the situation of the parties, and the surrounding circumstances that there can be no reasonable dispute. sic to 2520 3 i. ..ortnrseii, 305s. ioc'ifhart; Ca inner Liberty In; Jr if fir., 3t5 "tray's 2t, sic 'l.i o' '.d Jate Ay, 36R I r1 Gerald arna to Jottorrcod :Vv:l ir.c, 41 .iz.ilard JLJ to irur.svich Jorv ''.Trio r'le sic to ..arvii: J .:rouin, 3352 'rvce Or, Sandy to Lockhart; hh ds A fri"cod 3d, 3 1130 3 3237 hh ; 1st . jrLr Salas, 3itf7 Si .bilev .il'ler, . - . S, Crests, sic to Cent ' Cordova. 354 An; hh eds i'ci . La Iyi5 7525 v :V; .rnn appeal Wallace cites the Statute of Frauds, specifically Section U.C.A. 1953, which provides that a promise to answer for the debt, default or miscarriage of another must be in a writing subscribed by the party to be charged. Wallace asserts that there was no evidence in the record of an agreement, note, or memorandum under the terms of which he agreed to pay the obligation of the corporation, lie concludes that there is no ground upon which to predicate his personal liability, and, therefore, the judgment of the trial court cannot be sustained. On 25-5-4(- 2), Ljsnn, 217 31 Ave, sic to Pin; hh eds t lent :o ii c.i Jer.kir.s, lul : . -- TV Sew ind Mri; hh rd3 HI, Harris , 5tn Id Ind Jr; hh rds car Jarjas Ac to Aetna Ida Perry, 4400 3 3200 I'own S 2 19 3 South Roberts, iovn Ir:d Rd, etna Mr.; hh :ds C sic to Hunter, 36t5 Craiq Clr, sic to Shin's Hobby; Boat Mr Trlr 12750 4th S, sic to 3 hh pds Jur.e " Canavan, 1134 3 Admiral Ind Cr; hh rds o Idir.n atkinson, Shields, 7ol trial court found as a matter of fact that the paving work was done at the special instance and request and for the benefit of William It. Wallace and Russ Wallace Roofing, a corporation, and judgment was entered accordingly. The Josenh Tumin. 1059 3 6th S, sic to ..driiral ind Cr; hh fids Corn; Sonedsldddor -- Goo THREE to r, Implicit within the finding of the trial court that the work was done at the instance, request and for the benefit of Wallace, is the determination that Wallace made an original promise to pay the reasonable value therefoi. However, the basis upon which the instant appeal should he resolved is that the Statute of Frauds was not properly pleaded and therefore did not constitute a defense. Mr. and Mrs. Wallace and the corporation filed an answer in which they pleaded a general denial; they filed simultaneously a separate motion to dismiss on the ground that plaintiff's claim was barred by the Statute of Frauds. Rule 12(b), U.R.C.P., specifies the defenses which may be asserted by motion, defendants' ground is not included therein. Rule 8(c), U.R.C.P., provides that the Statute of Frauds is an affirmative defense. Defendants did not follow this procedure. Another aspect which merits consideration is that at the trial defendants' theory apparently was that Pappas made the original promise and that the Statute of Frauds was applicable as to their allegedly collateral promise. There was no indication in the pleadings, and there was no attempt to make any amendment thereto to assert the theory now claimed by Wallace in this appeal, namely, that his promise was collateral to the original promise of the corporation. Since this matter was not put in issue, there was no specific finding made by the trial court as to whether the parties intended that the promise made by Wallace, individually, to pay was collateral or original. The issue may not he submitted for the first time on appeal. The judgment of the trial court is affirmed. plaintiff. Costs are awarded to WE CONCUR: maxwell In, sic 9th S, sic to her J. Allan Crockett, Chief Justice Lei and a At 7, herald, 104 7 13300 S, Draper to Valley 3k; Ruuip R. L. Tuckett, Justice Harry 3 y.orter.ser., S05 Sherman five, sic to JCIT: Camner Garv Faddis, 4306 to V RIXL Cr Un; car 'rf 4335 hh gds s, Kearns F. Henri Henriod, Justice In The Supreme Court Of The State Of Utah A. H. Ellett, Justice W. W. & W. B. Gardner, Inc. , a corporation, Plaintiff and Respondent, v. Jim Pappas and Russ Wallace No. 11684 FILED Roofing, a corporation, June 2, 1970 Defendants, William R. Wallace, Defendant and Appellant. L. M. Cummings, Clerk CALLISTER, Justice: Plaintiff, a paving contractor, initiated this action to recover the reasonable value for asphaltic concrete paving laid at the site of the Wallace Warehouse. Plaintiff joined Jim Pappas, William R. Wallace, aka Russ Wallace, Mrs. Wallace, and Russ Wallace Roofing, a corporation. The trial court granted judgment to plaintiff against William R. Wallace and the corporate defendant; the action against the other defendants was dismissed. William R. Wallace, alone, appeals; the judgment of the trial court is affirmed. Jim Pappas, a contractor, constructed a warehouse for Wallace. Pappas had received a bid at a stated price per square yard from plaintiff for paving several projects. Wallace determined that the paving of his premises would be unnecessary, and Pappas so notified plaintiff. Pappas settled his account with Wallace for the construction of the warehouse. Subsequently, Wallace changed his mind about the paving and contacted Pappas, who informed Wallace about the bid of plaintiff. Wallace asked Pappas to contact plaintiff to do the work. Plaintiff was slow in responding to the request, and Wallace complained to Pappas; Pappas instructed him to contact plaintiff directly, which Wallace did. Pappas also telephoned an agent of plaintiff because he felt that as a contractor he had more influence. When plaintiff completed the work, it sent an invoice to Pappas and a copy to Wallace. 1 Pappas took the invoice to Wallace and told him to pay it directly because it was Wallace's contract; Wallace agreed. Pappas testified that if the contract were through hie company, he would have charged a ten per cent fee. Wallace requested that plaintiff extend him additional time, which was granted. Wallace has never paid. There was no evidence adduced to indicate either that plaintiff was aware of the existence of the corporation or that Wallace made a disclosure of his status as merely an agent thereof to plaintiff. Plaintiff introduced into evidence a deed which indicated that title to the warehouse property wai in the names of Wallace and his wife as joint tenants. O'Hair v. Kounalis, 23 Utah 2d 355, 358, 463 P. 2d 799 (1970). 2. See MbS Construction and Engineering Co. v. Clearfield State Bank, 19 Utah 2d 86, 87, 426 P.2d 227 (1967). 1. In The Supreme Court Of The State Of Utah Patricia M. Burnham, No. 11924 Plaintiff and Appellant, FILED v. Jure Bankers Life Casualty Company, an Illinois corporation. Defendant and Respondent. 2. 1970 Ac L. M. Cummings, Clerk CALLISTER, Justice: Plaintiff, the designated beneficiary, initiated this actlor. to recover the balance due on a decreasing term rider in an insurance policy issued on the life of her husband, Preston J. Burnham, dect ased. The defendant insurance company alleged that the policy was issued January 1, 1962, and lapsed upon failure to pay premiums on April 1, 1967. Thereafter, the policy was reinstated on July 21, 1967, pursuant to an application by the insured, wherein there was contained a provision that the applicant and company agreed that the reinstatement of the policy should be contestable on account of fraud or misrepresentation in material facts therein stated at any time within two years from the date of approval thereof. Defendant alleged that the insured made a misrepresentation of material fact and that if said fact had been known to the defendant, the policy would not have been reinstated. Subsequently, defendant filed a motion for summary judgment based on the pleadings, a deposition of Dr. Herbert B. Fowler, and the affidavit of defendant's attorney. The defense attorney in his affidavit asserted that Preston J. Burnham, in response to a question on the application for reinstatement, represented that the only physician or practitioner whom he had SUPREME COURT t DECISIONS-(Continu- ed on Page 4) |