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Show Now Actions Murray City Court 49135- - Roderick, Inc vs Stsven (424.43 1 open account! D. E 1111 Crans atty Yocom, 49136- - Inc. vs Plumber a Supply, 49159- - Collectiona Recovery va. Edward C. Price! 191.00! contract! 11. G. Hansen, 49160- - Jr! WE CONCUR: open account! 1520. 10 4916Randy M. G. McIntyre, atty 49138- - Libprty Loan Corp. vs Alfonso and Joe Chacon! 1487, 47 contract! A. M Metos, atty 49139- - Tor qan R . C James C. Gilliam vs. 1350.93 1 promissory note! R. vs. Mrs. services, R. G. Plary Howard Sums 49140- - James C. Cilliam - 49143- - 4916- vs. Clifford (44.50 services! A. R. Davis Co. vs. L. W. (88.83 contract! A, P. Matos, 3olen ettj Corp. vs. William R. Walton, Nyla Walton, and Ruth Silcoxi (330.31! promissory nots A. 11. Matos, 49140- - Loan Liberty atty Fidelity Acceptance Corp. vs. contract! 49147- - Dennis R. Wright (999. 00 fl. M. Metos, stty - Liberty 49148- 49149- vs. Jerry R. promissory notei Loan Corp. Scoggani (224. CC A. M. Metos, atty - Collections Recovery vs. Dale services! and Mrs. Abbotti (117 00 M. G. Hansen, atty - Collectior 49150W. and M Mrs. Moee atty G. Hansen, 49152- Recovery vs. Jerry (55.84! services! - Collections Recovery vs. - Collections 49154- - Collections Recovery vs. John 4915C- - I Douglas J. Davie, Plaintiff and Appellant, Sagers, atty Barton, atty 49167- - Plumbers Supply, Inc. vs. Cekater Corp.i (362.66! open sccount! 0. E. Yocom, stty ELLETT, Justice: (301. 60 atty Sewing Machine DiInc. vs. Dan Montoyai bad checks! R. R. Neslen, 4916- 9- Western States vs. Phillip and Katie Gonzalesi (95.82! services! R. R. Neslen, atty 49170- - Western States vs. William L. Hamm (110.00! promissory note! R. R. Neslen, atty affirm it. The plaintiff below claimed that there was a mutual mistake of fact and that the option contract should be rescinded. The court found against him on this matter. On the appeal plaintiff contends that there was a unilateral mistake on his part. Ordinarily an appellant cannot change his theory of the case on appeal from that presented to the court below. 3 Even if plaintiff had claimed a unilateral mistake at the trial, he could not prevail under the findings made by the trial court. - Western States va. Robert Jim Opheikensi (882.55! promissory nots R R. Neslsn, atty 49171- 49172- - Western States vs.Leonerd L. Reynolds. (76.51! open account! R. R. The requirements for recovery under a claim of unilateral mistake are properly set out in the case of Ashworth v. Charlesworth, wherein this court quoted from an annotation in 59 A. L. R. 809 as follows: - Western States vs. Freda M. Simonson! (42.00! services! R. R. Neslen, atty 49173- - Western States vs. Lloyd and Shirley Sorter! (153.97 services! 49174- Equitable relief from a mutual mistake is frequently given a by reformation of the contract. But a contract will not be re- atty formed for a unilateral mistake. Equitable relief may, however, be given from a unilateral mistake by a rescission of the contract. Essential conditions to such relief are (1) The mistake must be of so grave a consequence that to enforce the contract as actually made would be unconscionable, (2) The matter as to which the mistake was made must relate to a material feature of the contract. (3) Generally the mistake must have occurred notwithstanding the exercise of ordinary diligence by the party making the mistake. (4) It must be possible to give relief by way of rescission without serious prejudice to the other party except the loss of his bargain. In othet words, it. must be possible to put - Salt Lake Transportation Co. vs. Carnicero Dynasty Corp.! (276.44 open account! R. J. Carling, atty 49175- 4917- 6- Johnson Collections Recovery vs. contract! - Collections Recovery vs. Karl and Mrs. Osterberqi (706.20! open account! . G. Hansen, atty Peerless-Ut- h 4 Associates! Co. vs. Bill (590.50! open account! R. J. Carling, atty 49177- - Ricke Furnace and Appliance L. M. Cummings, Clerk The plaintiff and one Keith Kaneen gave the defendant $5, 000 for an option to buy land for an additional $95, 000. The complaint states two causes of action. The first was based on a claim of fraud and misrepresentation in that the defendant pointed out the location of the land in question as being different from what it actually was. The second is for a rescission of the option agreement, The court on conflicting evidence found that there was neither fraud nor misrepresentation on the part of the defendant and that he pointed out the true boundaries of the land to the plaintiff and Keith Hansen, Since there is evidence to sustain the finding of the trial court on this point, we must 2 - Pfaff stributors FILED October 20, 1970 Thomas W. Mulholland, Defendant and Respondent. 49168- No. 11931 v. - Western States vs. Joseph L. Johnson! (350.55! services, R. S. 49166- (46.00 services! Dennis Widdisoni (86.82 11. G. Hansen, atty 49155- A. H. Ellett, Justice Inc. Homes, Jr., Justice R. L. Tuckett, Justice Gsrdner Engineering vs. Classic (200.00! services, V. G. 5- R. R. Neslen, Recovery vs. Blanche Coltoni (144. 0P promissory note! M. G. Hansen, atty and Mrs. Freckingi M. G. Harden, atty atty leslan, atty Donald R. and Mrs. Sundelli (226.00 services! M. G. Hansen, atty 49153- Hansen, Sagers, etty 49144- - James C. Gilliam vs. John 0. and Sammie Mettoxi S5B.00 services! 1. G. Sunsion, atty 49145- M. G. 49164- - Victor G. Sagers vs. Pearl L. Cressall! (50.50! services! V. C. James C. Cilliam va. Pat Davis! services! R. G. Sumsion, atty Si 5 00 M. E. R. Callister, 124.50! services! R. G. Sunsion, atty James C. Cilliem D. and Merlyne Kessler! R. G. Sumsion, atty J. Allan Crockett, Chief Justice atty 4916- 3- Collections Recovery vs. James Albert and Mrs. Fitzlaffi James C Cilliam vs. Grant A. and Judy 11. Tuckeyi 55.CI0 services! - Collections Recovery vs. C. Ha f ford 180.65 services! Hansen, atty C. Hansen, - 49142- 1- 49162- - Collections Rscovery vs. Lynette Turner! l2l00! services! ion, atty Goodainj f294.65 Sumsion, atty 49141- and we so hold. Contracts Funding vs Hendrik Remkea, A tional cost, which the trial court allowed. The parties waived findings of fact and the court awarded Judgment for $611. 99, which is almost entirely supported by admissible, believable evidence in the record, which Judgment is presumed to be correct. There was a small $11 differential that this court could not detect from the record. Under the presumption mentioned, however, and the possible existence of minor unexplained costs, a question of a small witness fee, we think that applying such presumption and the de minimus concept, no remand is called for or necessarily warranted, -- atty Hansen, J. atty Collectiona Recovery vs. Lee 0. HcAffee! 77.80 contract t M. G. 120.49 Ken's Trailer Servicp open account! D E. Yocom, atty 49137- - THURSDAY, OCTOBER 22, 1970 THE DAILY RECORD FOUR PAGE Co vs. Windsor Management Agency! (16.80 open account! J. A, McIntyre, atty him in statu quo. (Emphasis added.) I J157. Collections Rpcovery vs. nd Mrs. Jin Melsoni (25.00! services! Hansen, atty 4910- - Collections Recovery vs. Roger and Crs. jsenscH (247. 46 open account '(. G. nansen, stty Plaintiff admits that he wan given the cm mt legal description of the land actually owned by the defendant; and in r the court found that there was no misrepresentation on the part of the defendant, in pointing out the location of the land, the plaintiff cannot have a rest inn of the option contract for 49178- - Dallas 11. Johnson and Gary Cochran vs. Merlin Timothyi (410.00 open account & services! D. Cary is Christian, atty 49179- - (6G0.00 Michael Rose vs. Reid Melsoni da rra qe s i T. No complaint is made as to the failure to join Keith Hansen in this lawsuit. Chat It on v. Haikeit, 11 Utah 2il 18. J60 P. ?d 1J (1961). 5 Am. Jur, 2d, Appeal and Error J 546. Pettingill v. Perkins, 2 Utah 2d 266. 272 P. 2d 185 (1954). 4. 119 Utah 650. 656. 23 p. 2d 724, f27 ( 1951i. 1. Charlier, atty 2. 3. In The Supreme Court Of The State Of Utah Utah Steel & Iron Company, a corporation, Plaintiff and Appellant, the reason that if there was any mistake his own negligence. No. 11958 mi his carl, it The judgment of the lower court is affirmed. FILED v. October 20, 1970 Skyline Construction Company, a corporation, Defendant and Respondent. WE CONCUR: L. M. Cummings, Clerk j J. Allan Crockett, Chief Justice HENRIOD, Justice: Appeal by plaintiff Utah Steel from a judgment in its favor for an amount due under a written contract, which amount plaintiff claims is insufficient. Affirmed with coats to defendant. Plaintiff saya defendant's agent committed the defendant orally to required defendant to expend at least the contract. a change of terms. Thia change $1, 000 for welding in addition to The trial court obviously disbelieved the testimony as to plaintiff's claim of authority of the agent. The defendant claimed credit for the addl- - t E. R. Callister, R. L. Tuckett, Jr., Justice Justin F. Henri Hcnnod, Justice I I w.i-- , due irtirely to Cr.stt. to respondent. |
