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Show TUESDAY, NOVEMBER 28, 1972 THE DAILY RECORD PAGE THREE In The Supreme Court Of The State Of Utah Peoples Finance Sr Thrift Co. i a Utah corporation, dba Peoples First Thrift, Plaintiff and Appellant, No. 12518 FILED November 16, 1972 v. L. M. Cummings, Clerk Justice: Plaintiff finance company, assignee of a contract for sale of some hairpieces and accoutrements for personal use, sued defendant buyers to recover $384.40 balance on the contract. From adverse findings and judg ment plaintiff appeals. On June 26, 1969, defendants signed the "installment sale and security agreement" with Daynor Hair Fashions and made the required small down payment. The plaintiff's evidence is that 15 days later, on July 11, Daynor assigned the agreement to it, and that a payment book and notice advising of the assignment was mailed to the defendants. However, defendants' testimony was that they never received such a notice; and that on July 22 they returned all of the merchandise to Daynor, who accepted it and gave a receipt therefor. question is raised as to the matter of holder in due course of this contract as a negotiable instrument. Plaintiff's brief under the caption "Relief Sought On Appeal" states: . . . Quite beyond what has been said above, it further appears that the assignment to the plaintiff Peoples Finance is not complete and. unequivocal. It is plainly stated to be an assignment with full recourse against its assignor Daynor. 7! Scott E. Landes and Gae Lynn Landes, Defendants and Respondents. CROCKETT, buyer or lessee against the seller or lessor arising out of the sale or lease notwithstanding an agreement to the contrary, 5 Jensen v. Logan City, 96 Utah 522, Utah 2d 106, 297 P. 2d 542. 88 P. Richard's Estate, 2d 459; In Re 2. Memmott v. U. S. Fuel Co. , 22 Utah 2d 356, 453 P. 2d 155; Bramel v. Utah State Road Commission, 24 Utah 2d 50, 465 P. 2d 534. 3. That a plaintiff assignee has the burden of proving that the obligor had notice of an assignment see Pillsbury Inv. Co. v. Otto, Minn. , 65 N. Y. 2d 913 and authorities therein cited; see also Lynch v. MacDonald, 12 Utah 2d 427, 367 P. 2d 464; and further that if there is any reasonable basis in the evidence upon which the court acting fairly thereon could remain unconvinced, then this court would not command that such a finding be made, see Park v. Alta Ditch & Canal Co. , 23 Utah 2d 86, 458 P. 2d 625. . 148 N.E. 2d 385 at 4. See Quality Finance Co. v. Hurley, Mass. 388 and authorities therein cited. Upon the basis of what we have stated herein we are not persuaded that the findings should be overturned nor the judgment reversed. Affirmed. No costs awarded. I Small Claims Court Divorces Granted No. vs Appellant seeks to have the finding of the trial court that the defendants had no notice of the assignment set aside as a matter of law and judgment entered against the 7969 - Carolyn Webb Hendrickson vs Clifford Ballard Hen- 30053 respondents. 180493 - Susan Ann Dean vs John Gerald Dean The findings recite in pertinent part: ... that the Plaintiff has failed to prove by a preponderance of the evidence that Defendants had notice of an assignment. And further: That on the 22nd day of July, 1969, and prior to defendants being informed of or receiving any knowledge of the assignment aforesaid, defendants returned to said DAYNOR HAIR FASHIONS all of the items of property purchased by defendants from said DAYNOR HAIR FASHIONS and received a receipt therefor. In support of its argument that the quoted findings should be vacated, that appellant places emphasis on two aspects of the evidence. The first is the defendants admitted receiving a payment book, which the plaintiff says was mailed with the notice of assignment. However, plaintiff's Exhibit B, which purports to be a copy of the notice of assignment sent to the defendants, states: Enclosed is your coupon book showing the schedule of payments on the above purchase are if (Incidentally, the document consists mostly of a solicitation that they ) them therein. in financial trouble they should come to plaintiff to assist as to "the above in information for filling However, the blank space provided in was correct court the trial purchase" is not filled in. Accordingly, reciting in his findings that .... the letter makes no statement Plaintiff's Exhibit and indicating that Plaintiff is the owner of the contract, makes no demand upon Defendants for payment to the Plaintiff rather than Plaintiff's assignor. B The other aspect of the evidence upon which the plaintiff relies is that although the defendants state the merchandise was returned before Landes admitted on they had notice of the assignment, the defendant Gae that on the day she returned it she did know of the with the finding of the trial assignment. This is not necessarily in conflict the inference does not seem court. Though the detail is not fully spelled out, at all unreasonable that she learned of the fact of the assignment that same merchandise and received a day, at the time of, or after she returned the receipt from Daynor. cross-examinati- - 7865 Davis connection with our consideration of appellant's argument insistdiscussed mandate the vacation ing that the two aspects of the evidence just of the findings above quoted, there are some basic principles that it seems not not to have been taken into account. The first is that the fact trier is evidence unless he so desires; the compelled to believe second is that we are obliged to assume that he believed those aspects of the evidence, and drew such inferences as fairly could be drawn therefrom, in the light favorable to his findings and judgment;2 and the third, that the of burden of proof and of ultimate persuasion of the essentials of its cause action was upon the plaintiff. In self-interest- ed There are other propositions of law which lend support to the determination made by the trial court: that the plaintiff should not recover. Absent any consideration relating to the plaintiff being an innocent purchaser for value (or holder in due course) under the Uniform Commercial Code, whatever in becoming an assignee of this purchase contract, it acquired only and was subject to any defenses rights Daynor had against the obligors Landes Consumer Credit Code Uniform the In this connection the latter U.C.A. 1953, provides: Sec. 7Qb-2-40- 4, ... Pltf$200.00 bal due - John C. Don Davis vs Pltf$45.00; EDDIE PEREZ; bal on note - William Becker, Agent for Kraft Foods vs CLARK 30054 Davis vs Nila Pltf$152.83; auto SIDWELL; damages 7684 - Roy Georgle Kehr vs Lois Jean Kehr 30055 R. White vs P. EVANS; Pltf$160. unpaid bal 30056 vs 189981 - Jeannette vs John B. Farris - J. BRIGHAM 165468 - Mary Lou Blair Valdez vs Isaac Delfln Valdez I L.Farrls - Progressive Personnell KAYE M. MITTS; bal due 30057 - Noel B. 8982 - Pamela Lee Lambertson MR. vs Giles Pltf$180.00; Lambertson 7973 - Thomas Birmingham vs Barbara Hellen Birmingham Pltf$80. 00 Croft vs JOHN NAISBITT AND MRS. damages Marriage Licenses Robert B. Gibson, Evansville Small Claims Court Ind. (22) to Pamela Wler East So. Temple (22) - F. E. Martens, Gdn Charles Martens vs STEVEN for Earl Donald Attrldge 40 W. 4th North (29) to Karleen 30040 848 Lewis 327 10th Ave (21) Pltf$176.00; auto BOHN; damages Raymond Arthur Snipes, 221 Johnson's Ferrey Rd, Atlanta, Ga (25) to Adele Groutage 2871 East 2960 So. (20) 30041 - Roger Sheperd dba American Testing Lab vs H. LLOYD Pltf$100. GRAHAM; loan - Delos Burton vs 30042 Richard d. thomas; Pitf$200. rent due - Ross 30043 Sales vs Roa RASMUSSEN; NORMAN S. Pltf$63.77; bal - Zlnlks vs 30045 NELSON NEFF; bal due Sterling Pltf$78.00; MADDUX DBA db 30047 SOV-RON-- TY Pltf$145 CONSTRUCTION; unpaid bal - First Sec. t Bankamerl-car- d vs CAROL 0. RICH; Ptf $200.00; bal due 30048 1028 Ma- Roy Kay Christensen 8565 W. 2700 So. Magna (25) to Linda Kaye Evans 2924 So. 8600 W. Magna (25) Calron Electric Supply vs LEONARD Duane Cope, nsfield Ave (22) to Verla Jean Urie, Ogden (23) HELEN B. - George Morgenegg 30046 Leon Van Gray 1945 So. 5th E. (20) to Lillian Maxine Genta 4835 So. 4125 West, Kearns (19) Robert Edwin Hofmann, 3971 So 9th E. legal age to Mary Ann Cutchall, 300 So. Straugha Boise, (legal age) Anderson dba W. 30044 - Sears and Reobuck Co. VS ROBERT R. LEWIS; Ptf $60.57; bal due - Linda J. Moore vs JOSEPH HORNE, JR. AND MERLIN TIM0THY;Pltf$25.00 Alex Joe Salazar 2959 So. 9200 W. Magna (26) to Karen Gay Grow 3320 So. 7655 W. Magna (15) Paul Brian Gamer, 571. E. 33rd So. (20) to Terri Acord 1915 E.Millbrook Rd (19( Douglas Alan Pearson, 850 Emer- son Ave (23) to Nancy C. Sudbury 277 Pueblo St. (20) refund 30049 - Ronald Hansen Gdn for Michael Hansen vs VIRGIL BABCOCK, JR. auto damages M. Randy Dean $175.00; unpaid rent 30051 - Eleanor M. bal due Robert Rigby Sayer, 5530 Somerset Way (19) to Carol Ann Andrus 2792 E. 7350 So. (19) Pltf$200.00 30050 - Mrs. Russell Brown vs PAUL SERVATIUS; Pltf MARY -- With respect to a conAssignee subject to defenses. an assignee of the rights of the sumer credit sale, seller or lessor is subject to all claims and defenses of thf Ridges Dls.Co 30052 drickson on - - R. A. LASS BANG; 8059 - Molly Fall Sandgren vs Gene Edward Sandgren COWBURN; Moss, vs Pltf$84.85 xwell Lane Greehhagen Linschoten, 353 Ma- (20) to Sharon R. 1380 So. 900 West (20) Kenneth Lynn Thlrsk, 860 E. 3rd So. (32) to Mary Lynne Phillips, 781 Red Maple Circ |
