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Show 'Kls!t! a u fh '' " --- , .. ..., -- n.- ' THURSDAY. APRIL S. tffc In The Supreme Court Of The State Of Utah Fred which was to be exchanged was In the instant action the city property B. Baugh and not identified in the minutes. Grace H, Baugh, Plaintiffs and Appellants, FILED March 24, 1972 Logan City, a municipal ojs are insufficient, corporation, Defendant and Respondent. CALL1STER. ques- e on insufficient to take the allege ea tion is wholly A! . no sufficient fa elefnfn Af FwaitHl.mfftf i v. herem Under all the authorities, the memorandum No. 12547 The acts asserted by plaintiffs as part performance as a matter of law, to warrant a decree of specific performance. L. M. Cummings, Clerk Chief Justice; . lug Plaintiffs initiated this action, seeking specific performance of an alleged contract to exchange real property. In the alternative, they sought $2000 damages. Defendant moved for summary judgment, which .the trial court granted; plaintiffs appeal therefrom. 3 In De Marco v. E.tlow, the plaintiff urged that survey in furth.rnc. of the .gr..m.nt hi- jJ&SLi wJ j 413, 416, 242 P. 2d 578 (1952). 2. Adams' v. Manning, 46 Utah 82, 84, 148 P. 465 (19 (1952). 3. 18 N. J. Super. 30, 86 A. 2d 446, 447-44- 8 121 Utah 412, 1. 1 ) ' Bale Acts merely ancillary to an oral agreement for the of lands, although attended with expense, are not considered acts of part performance sufficient to relieve the case from Citations the provisions of the statute of irauds- Plaintiffs alleged that on May 27, 1969, they proposed to the Logan City Commission that land owned by plaintiffs be exchanged for land of Logan City. They claimed that the proposal was accepted and approved by the Board of Commissioners, who authorised the mayor to sign a quitclaim deed transferring the land of Logan City to plaintiffs. Attached to plaintiffs1 complaint were two unexecuted deeds which allegedly described the property, to be transferred in the exchange, piaintiffs further alleged that in reliance upon the contract, they, at great expense to themselves, had the land of Logan City surveyed for the purpose of obtaining a legal description. They fclaimed that on March 17, 1970, they tendered their quitclaim deed and offered to deliver it upon delivery by defendant of its exchange deed. Plaintiffs asserted that thereupon defendant repudiated its agreement and refused to participate in the exchange of deeds. " - Plaintiffs cannot prevail on the alternative claim for damages for defendant's alleged repudiation of the agreement. The doctrine ol part not available in an action for damages on an oralo contract performance is AJ- . t to ronviv land. A in its determine Finally plaintiffs contend that the trial court erred on contract. tion that Section applies to a cause of action based . 63-30-- Section Defendant in its answer pleaded the Statute of Frauds, specifically U. C. A. 1953, and the Utah Governmental Section Immunity Act, Section U, C. A. 1953, wherein it is provided specifically, that a claim against a political subdivision shall be forever barred unless notice thereof is filed within ninety days after the cause of action arises. 63-30-- 13 provides: 13 claim against a political subdivision shall be forever barred unless notice thereof is filed within ninety days Emphasis added. after the cause of action arises, 25-5-- 3, A 63-30-- .... Section In response to certain interrogatories, plaintiffs stated that their of action arose on March 17, 1970, the day the City repudiated the cause agreement and that they had never filed a claim in accordance with Section 63 3 0 13 They further asserted that their contract was removed from the Statute of Frauds by part performance. In the alternative they claimed that there was a sufficient memorandum in writing to. satisfy the statute- In response to a request for a copy of the written agreement, they stated: 63-30-2- provides: (5) The word "claim" shall mean any claim brought against a governmental entity or employees as permitted by this act; Emphasis added. Section 63-30- provides: -5 - Immunity from suit of all governmental entities is waived as to any contractual obligation. Emphasis added. The minutes of the meeting of the Board of City Commissioners of Logan City dated May 27, 1969, contain the following written evidence of a contract for exchange Since an action on a contractual obligation is a claim permitted under the Utah Governmental Immunity Act, notice of such claim must be filed in accordance with Section of property: 3. motion hy Commissioner Bott and seconded by Com missioner Jacobsen to authorize the Mayor to sign a quitclaim deed transferring City Property in exchange for an easemer. of 13 feet from Fred Baugh for the purpose of constructing a sidewalk and widening the :gti;eet between,-- , main and first west street. Mr, Baugh to remove the "A defendant. , . ..J - WEiCONCUR: ' Tap Room building at his own expense and to the canal to the original canal bed and also the building of .the new sidewalk, " re-loc- Costs are awarded to The judgment of the trial court is affirmed. - !: ' R. L. Tuckett, Justice ate F. Henri Henriod, Justice Based on the foregoing defendant moved for summary judgment. Hie a memorandum decision which was incorporated into the judgment in favor of defendant. The trial court found that the claim was U. C. A. 1953, which barred by the Statute of Frauds, Section provides: A. H. trial court issued Eilett, Justice J. Allan Crockett, Justice 25-5-- 3, Every contract . . . for the sale, of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, is m writing subscribed by the party by whom the lease or sale is to be made, or by his lawful agent thereunto authorized in writing. trial court found that the writing upon which plaintiffs relied, the minutes of the Commission, did not describe the land to be exchanged and appeared to be an authorization to enter into a written contract rather than a memorandum of the contract itself. The court found that from the interrogatories answered by plaintiffs, there was nothing to indicate that the writing had been subscribed by the party by whom the sale was to be made or by his lawful agent thereunto authorized in writing. The court determined that concerning plaintiffs' claim of part performance, no part of the contract for an exchange of land had been performed, since the alleged acts of performance, a survey and preparation of deeds, were merely preparatory acts to the performance of the alleged contract. The court.further found that since plaintiffs claimed their cause of action arose on March 17, 1970, and they had never filed a notice of their claim in accordance with U. C. A. 1953, their action was forever barred under Section the statute. See 3 Willi ston on Contracts (iri Ed.), Sec. 494, p. 5o5: "The preparation of deeds or giving instruction for preparation will not validate the Also see 101 A. L.R. contract. 260 P.2d 570 (1953); 5. Ravarino v. Price, 123 Utah 559, 4. ..." 996-99- 578-57- 7. 9, Baugh v. Darley, 112 Utah 1, 5, 1S4 P 2d 335 (1947). The 63-30-- appeal, plaintiffs assert that the trial court erred in granting defendant's motion for summary judgment because there was a genuine issue of material fact as to whether the City could rely on the Statute of Frauds as a defense where plaintiffs had relied on the minutes of the Commission and expended money to survey the property of defendant. Plaintiffs contend that they are not, as a matter of law,- precluded under the facts asserted from being awarded any relief. On April 20, 1971, the U.S. Supreme Court ruled in favor of compulsory school busing in the Svcann v . Charlot tc 31 ccklcnhurf Board of Education case. -- Does this esse mein cross-tow- n busing of school children in Salt Like City? Could the Courts order your child in in East Bench or Avenues School to be bused to an inner city school? Now, JURISTICS Tapes bring you the landmark school busing decision. Listen to the ruling and find out how R applies to Salt Lake City residents. Hear the introduction, opinion and conclusion on the most important and controversial decision ever regarding school desegregation. Turn Wasted On - Birdzell v. Utah Oil Refining Company this court affirmed a summary judgment rendered on the ground that neither the alleged agreement nor an adequate memorandum thereof was in writing as required by SecU. C. A. 1943 U. C. A. 1953). This court held that tion a letter, alleged to represent the agreement, would not suffice as a memorandum. Hiis court stated: JURISTICS has already gone to all the work to save you the time it would take to make an study of this vitally important case. This tape is extremely convenient and easy to use, especially for the man with a busy schedule. th (25-5-- 3, ... relied 3, It is fundamental that the memorandum which is upon to satisfy the statute of frauds must contain all the essential terms and provisions of the contract. . . . 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