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Show Pace 4 Tuesday, August 19, 1958 THE DAILY RECORD Extracts from Recent Decisions of the Supreme Court of the State of Utah IN THE SUPREME COURT OF THE STATE OF UTAH Annie B. Evans, as Administratrix of the Estate of William H. deceased, otherwise Evans, known as William Evans, deceased. Plaintiff and Respondent, v. More an Evans, Defendant and Appellant. No. 8892 WADE, Justice: Annie B. Evans, as Administratrix otf the Estate of William H. Evans, deceased, (brought this suit to recover a onehalf interest in 44 and certain cattle branded for an accounting and payment for part Of such cattle sold !by Morgan Evans, defendant and appellant herein, since the death Of William H. Evans. This appeal is from a judgment upon a jury verdict in favor off the plaintiff, respondent herein. At the trial respondents attorney introduced in evidence certain exhibits of which he had become cognizant by virtue Of his employment 'by William H. Evans and Morgan Evans to represent them in a dispute between them and a third party involving a lease 44. This disand cattle branded the was settled agreement toy pute of all the parties whereby the third party was to make periodical payments to the attorney for the benefit of William H. and Morgan Evans. At the time of the trial there was left one payment which had not yet become due, to be collected and paid over by this attorney. Appelant contends that because of this an attorney-clien- t relationship still existed between himself and respondents attorney, and the court, after being apprised Of this relationship, therefore committed prejudicial error in allowing this attorney to appear as an advocate in behalf Of the opponent of one Of his clients and to introduce the exhibits he obtained during such relationship. Appellant concedes that the evidence would have been admissible had respondents attorney been subpoenaed to give it, but because it was volunteered while that alttomey was acting as an advocate in the suit, it was a violation of appellants rights to have his confidences remain inviolate an dtherefore should not have been admitted: There is no merit to such contention. As this court has said in Anderson v. Thomas, 108 Utah 252, 159 P.2d 142 on page 262 of the Utah reporter: . . . The mere fact that the relationship of attorney and client exists between two Individuals does not ipso facto make all communications between them confidential. As noted in Wigmore on Evidence, Section 2311, No express request for sec- the depositary of confidential communications from either party which ought to be withheld from the other. And this is usually the case even though the parties have adverse interests. The general rule is, of course, of particular weight as to communications made while all clients are present. Thus, if two or more persons consult an attorney at law for their mutual benefit, and make state-- . ments in his presence, he may disclose those statements in any controversy between them or their personal representatives or successors in interest The exhibits having been obtained by the attorney under circumstances Which did not make them inadmissible, the fact that the attorney was the advocate of Ithe opponent of his client did not make, it error to admit them in evidence. Appellant further contends that the court erred in allowing a witness fee and mileage for J. Pratt Allred because he was an unnecessary witness. Mr. Allred, as the District Range Manager of the Bureau of Land Management, testified about and identified and licenses for joint grazing rights for 20 head of cattle. Appellant in bis answer ad- recy, to be sure, is necessary; but the mere relation of attorney and client does not raise a presumption of confidential- ity, and the circumstances are to indicate whether by implication the communication was of a sort intended to be confidential. These circumstances will of course vary in individual cases, and the ruling must therefore depend mnch on the case in hand.' In the instanlt case the exhibits were acquired and pertained to a mlatter in which both appellant and respondents decedent had a common interest and the information Was divulged to the attorney for Ithe common interest of both. Under such circumstances the communications were not confi- mitted that he and respondents dential, because knowledge of decedent owned joint grazing thme was equally shared by the rights for 20 head of cattle. Mr. parties and their attorney, and Allreds testimony and the exfrom the nature of the communi- hibits merely confirmed that adcations, they were not intended mission. There was no showing to be regarded as confidential. As that he had any personal knowlStated in 58 Am. Jur. Sec. 496, 44 edge as to the ownership of page 277: cattle which was in dispute in this When two or more persons action. He was clearly an unnecesthe same at- sary witness and the court should employ same matter, com- not have allowed respondent his torney in the munications made by them in witness fee and mileage in view relation thereto are not privil- Of appellant's admission In his eged inter sese. By selecting the pleadings of all the facts to which same attorney, each party Mr. Allred testified. waives his right to place those Affirmed, except as to part of communications under the the costs below. Each party to shield of professional confi- bear his own codts of this appeal. dence. Either party may introWE CONCUR: duce testimony concerning the Roger I. McDonough, same as against the other, or Chief Justice his heirs or representatives. The J. Allan Crockett, Justice reason assigned for the rule is George W. Worthen, Justice that, as between the clients, F. Henri Henriod, Justice communications made for the mutual benefit of all lack the element of confidentiality which IN THE SUPREME COURT is the basis of privileged comOF THE STATE OF UTAH munications. Ordinarily, the attorney for both parties is not Arnold Haymore and Blaine H. Haymore, Plaintiffs and Respondents, ..." ap-plactio- lt v Reuben J. Levinson and Yetta Levinson, Defendants and Appellants. No. 8793 CROCKET, Justice: offers a ready-mad-e market for all types of businesses. A quick analysis of these columns will reveal many valuable prospects for your services. A subscription to the DAILY RECORD entitles you to use of this material'. Plaintiffs Haymore recovered attached to the contract. TThe Levinsons moved in and Haymore preceded with the work, and when he finished, requested the release o fthe $3,000. The Levinsons stated that they were not satisfied with certain of the refused to release the money. After some discussion, Haymore agreed to take care of another list of items which the Levinsons insisted must be completed. When he and his workman came to do this work, the Levinsons indicated dissatisfaction with this second list they had agreed upon and demanded still further work, to which Haymore would not agree. The Levinsons thereupon told him that unless he would agree to and do alii toe work they then requested and in a manner they required, he could do none; and when he refused, ordered him off the property, taking ithe position, that they would not release the money until he fully satisfied their demands. The defendants, position is in essence that the words satisfactory completion of toe work are items andi to be given a subjective meaning: i.e., that it is a matter of their chaice and unless they are satisfied and so declare, the money is not payable;, whereas the plaint iffs assert that it means only that the work must meet a standard reasonable under the cirsum-stance- s. ' . The adjudicated cases recognize that contracts wherein one party agrees to perform to the satisfaction of the other fall into two general classes: the first is where the undertaking is to do something of such a nature that pleasing the personal taste, fancy or sensibility of the other, which mannot be readily determined by objective standards, must reasonably be considered an element of predominant importance in the performance. In such cases toe covenant that something will be done to the satisfaction of the favored party orlinarily makes him the sole udge toerof and he may give or iwtyhhold his approval as he desires. 1 The other class of cases involves satisfaction as to do such things as operative fitness, mechanical utility or structural completion in which the personal sensibilities just mentioned would not reasonably be demed of such predominant importance to toe performance. As to such contracts toe better considered view, and the one we adhere to, is that an objectve standard should be applied: that is, that the party favored by such a provision has no arbitrary privilege of dedining to acknowledge satisfaction and that he cannot withhold approval unless there is apparent some reasonable justification for doing so. judgment for $2,739.00 for money payable under a contract by which they sold defendants Levinson a 2 house. The essence of Levinsons Building contracts ,such as toe defense below end contention for one in question generally fall is had that there reversal here within the second class of conbeen no satisfactory completion tract above discussed .3 In regard of the house as required by the to them it is plain to be seen contract. The question involved is what that giving the word 'satisfactory the term satisfactory completion an entirely subjective meaning, might produce unconscionable recomprehends. Plaintiff Arnold Haymore, a sults. The favored party could, contractor and builder, was con- upon any whim or caprice, end structing the house in question without reason, refuse to ackat Holladay in Salt Lake County. nowledge satisfaction and thereIn November of 1955, when it was by escape his obligations under well along toward completion, contract. The ends of justice are defendants ronitracted to purchase obviously better served by the at for $36,000 on terms described application of the objective standtherein. The provision pertinent ard which only requires the work here was that $3,000 of the pur- obviouslyb isAntojja.;fin- chase price was to be placed in to be completed in a reasonably escrow to be held until 'satisfac- skillful and workman-lik- e mantory completion of the work ner in accordance with the acceptwhich referred to a list of items ed standards in the locality. If, in the 'light of such standards, it would meet the approval of reasonable and prudent persons, that should be sufficient The above view is consonant with our recent holding that a clause in a contract for toe furnishing of heat was to be within the lessors sole judgment, could not be arbitrarily applied to justify the furnishing of entirely inadequate heat, but was subject to a sensible interpretation in relation to the reasonable needs of toe lessees under toe circum-stances- 1 .4 trial court correctly adopt-e- d and applied the standard to which we give our approval here- in. In doing so it found that the plaintiff had completed the original list of items attached to the contract in a satisfactory manner, (except for same minor deficiencies of a total value of $261 for which an offset in favor of defendants was allowed) and that there were no structural defects. On the question of structural defects the defendants stressed particularly the provision of the contract that there was a one-yey. guarantee on the house Under it they sought redress for some cracking in the cement roof of the garage which also serves as a patfo, which they aver causes some leakage through into the garage 'below. The answer to this is found in the fact that the tower court's finding that there were no structural defects is supported by the testimony of two qualified experts who had inspected the home and exvplicit-l- y said they found no structural defects therein. Defendants own expert was uncertain as to whether such cracking as had occurred could properly be classified as a structural defect because they were nothing other than is to be expected in connection with such construction. The trial court could believe and rely on such testimony. Ye are obliged to review the evidence and every reasonable inference fairly arising therfrom in the light most favorable to the findings and not to disturb them so long as they rest upon a reasonable foundation therein. In regard to items complained of as not being completed on the second list, which the plaintiff at one time agreed to fix, another principle of law is applicable. Assuming without deciding that the plaintiff became obligated to complete that list, the defendants prevented the plaintiff from further performing by ordering him off the property, and therefore cannot take advantage of the failure of performanoe.6 ' Affirmed. Costs to respondents. 1. 17 C.J.S. 1007; citing numerous cases; Corbin on Contracts, The ar stru-turall- Sec. 645. Midgley v. Campbell Bldg., P. 820; see also Femellus v. Femelius, 77 Utah 2. 38 Utah 293, 112 395, 296 P. 244, 3. See 17 CJ.S. 1010. 4. 13th and Washington Corp. v. Neslen, 123 Utah 70, 254 P. 2d 847, Fleming-Fe- lt Co. v Felt, et al., Utah .... 323 P. 2d 712. 6. SSee Hoyt v. Wasatch Homes, Utah 523, 261 P. 2d 927; v. McKelvey (Cal.) 220 P. 729) Restatement of Contracts s 108 Bom-berg- er 295. WE CONCUR: Roger I. McDonough, Chief Justice Lester A. Wade, Justice F. Henri Henroid, Justice WORTHEN, J. concurs in the result. ' |