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Show THURSDAY, MARCH 30, 1972 THE DAILY RECORD THIS PAGE A Supreme Court dispute. 43825 CALLISTER. Chief Justice: (Dissenting) 43959 D. vs I respectfully dissent. I cannot agree that the quotation from the parain graph Beehive State Bank v. Rosquist, 21 Utah 2d 17, 439 P. 2d 468 (1968), represents a complete statement of the ruling case law in this jurisdiction as to joint bank accounts. tract The majority opinion proceeds on the assumption that a written conmay be reformed on the assertion that it does not represent the intention of the parties. In Hobbs v. Fenton, 25 Utah 2d 206, 208-20- 9, 479 P. 2d 472 (1971), this court stated: The bank account and stock certificates constituted valid, enforceable written contracts. There were two grounds upon which plaintiff could assert his claim: one, the contract was void because of fraud, mistake, incapacity, or other infirmity; or, second, he was entitled to the equitable remedy of reformation of a written instrument because such instrument failed through accident, mistake, or fraud, or a combination of fraud and mistake to express the real agreement or intention of the parties. The latter case is premised on the theory that the parties came to an understanding, but in reducing it to writing, through mutual mistake or mistake and fraud, some provision was omitted. or mistakenly inserted, and the action is to change the instrument as to conform it to the contract upon which the parties had agreed. In the instant action there were no allegations, proof, or findings that through accident, mistake or fraud that the written agreement failed to express. the real agreement or intention of the parties. The language in First Security Bank of Utah v. Burgi, 122 Utah 445, 454-45- 5, 251 P. 2d 297 (1952), is particularly appropriate in the instant action: . . . where an intention to create- a joint account is a clearly expressed in written contract executed by the parties, which remains unaltered, and there is no. evidence of fraud, undue influence, mistake,, or other infirmity, the question of intention ceases to be:an issue and the courts are bound by the agreement. . . . Likewise it is true that the fact that all the funds are contributed by one of the parties will not prevent the creation of a joint tenancy in the account if all of the essentials for the creation of such an estate exist. . . . Emphasis added. In the instant action, the trial court was precluded from finding the intention or purpose of the parties in creating the joint account, until there was established a ground to grant reformation of the contract. - Richard LARRY G. for Writ of Habeas Corpus Fltf$74. vs Reed S. Clegg Pltf$10,000; $5,000; $150.00; $1,000; auto damage DY SHOP; Pltf$350.00 $6,637.54; $384.00; $728.00; $26.90; notes - 43466 - Manl vest, Inc. vs 328 GRANT Pltf$462.00; - Glen A. Teselle LIVINGSTON; Pltf vs - Jess's Upholstery and Mfg. Co. Inc. vs Rosquist, and dissenting concurring-in-pa- rt 26 Utah 2d -i- n-part 328 $27.00; 42078 - Van Waters & es ... ed City Court Suits 44490 Salt Jean Sunderland dba Lake Nursery School vs -- JEFF FISCHER FISCHER; AND CAROLYN P1t$155.00; bal due - J. Dean Johnson dba Hillcrest Glass & Paint vs DONNA HANSEN; Plt$20.73 44491 bal 44492 Pltf - George E. Smith and Sherrel H. Smith vs EARL J. vs ROBERT HOWELL; Pltf $195.55; $15.60; 328 DALE FARRELL LEE STERLING Pltf$196.45; $22.28; $122.90 320 43618 $250.00; $9.60; 328 43837 CHARLES WAYNE KAY G. KAY AND EDWARD Foreclosure 316 44015 Admr J. H10WN DBA HAROLD MIKE'S vs LENA LIVSEY - Peter Lawrence Assoc DENNIS JO JESS ANNE BARNARD Pltf BARNARD; Co RICHARD FLORES AND CAMILLE Pltf$940.58; note FLORES; 204692 - Beehive Collection Agency vs MFTD CORPORATION AND JOHN Pltf A. SYPHERS; $52,000; note M. BUG SHOP Pltf$412.50; $7.80; Pltf$1,927.63; note $1,851.80; $420.00: note 204691 - Interlake Thrift - Kenneth N. Brown of Est. of Fred C. Medau, vs Pltf$700.00 204689 - Mortgage Investment Co. vs JUNIOR A. ADAMS; AND - Interlake Thrift vs AND ROSE CHENEY check vs Ptf T. MARY CHENEY; 204690 - LeRoy S. Axland vs NATIONAL SURETY CORPN; - Terry Green vs 204688 42635 - John David and Gary Ferguson dba Gary's Comp. Corner vs Pltf agreement Rogers 204693 -- International Bus. Machines Corpn Inc, vs PHTL L. HANSEN; Pltf$2,094.84 328 $500.00; contract - Flair, Inc. vs Pltf NEED MORE SPACE? opinion in Beehive v. commented that' "The we'akness in the rule is the first phrase, that 'If the contract between the parties osten-creata joint tenancy . . . there arises a presumption that such is the case . . .' It seems to me that if and ostensibly beg the question. There having been concededly a joint account contract created in clear, unmistakable language, it would seem that it would not be subject to an attack by are and parol, since the intentions no uncerthere is stated, clearly tainty or ambiguity to resolve. " I think the above-quotlanguage is apropos in the instant case. If the contract is clear, no presumption is needed to make it effective or more nearly clear, - and certainly there is no presumption that it is ineffective, or that it is unclear or requires any stimulant or additive to breathe life into what is already breathing. HOLLOWAY; GREEN, GROVER H. YOUNG, HAROLD L. CARLSON AND STRAWBERRY RIVER EST. INC; $1, 000 Pltf$552.50; $124.31; $226. $76.72; $7.00; 328 I HOLT VAL GARS DEN DBA VGA PLASTICS SKIN PRODUCTION. INC; 62, 484 P: 2d 1188; April 14, 197,1,. HOLLOWAY ELLEN LYNNE AND MICHAEL 204687 43058 In a Tiust & 40402 HENRIOD. Justice: following: Bank ELLEN LYNNE HOLT AKA $1,364.77; $340.00; $512.70 $183.00; note - I concur in the dissent of Mr. Chief Justice Callister, and add the - Valley 204686 Co. vs 328 $792.63; Oil Co. Husky WAGSTAFF STATIONS INC. AND DONALD H. WAGSTAFF; Ptf vs $14.07; $22.00; 328 LYLE G. GOFF; - The 204685 - William Lash vs REINER REBER; 37576 - Mark D. Anderson DENNIS WHITE DBA DENNY'S BO 204684 vs MICHAEL MORRIS; Pltf $420.00; $9.70; 328 44011 Janes K. McBride vs L. LARSON; Petition DELMAR Barton, M. Clark support Ann NORMAN CLARK; 204683 PARKS; - Dr. vs Pltf$75. $9.70; 328 44022 - Margaret 204682 - Dr. Reed 8. Clegg vs LOUISE MARLOWE; $7.60; 328 The judgment ie affirmed with coats awarded to the respondents. Suits District Court City Court Judgments A. WARBEN OOIAIN8 43738 - J. Franklin Allred Real Ettatc Salet vs LANA WILLIAMS ; Pltf $62.00; $11.00; 327 44036 vs COMMERCIAL INDUSTRIAL - Bonded Adjustment Br ARCHIE HANSON AND NANICE HANSON; 327 k Development Pltf$828.33; $14.30 - Bonded Adjustment Br vs JOSEPH 0. WHITE AND BERNICE WHITE Pltf$487.72; $12.60; 3 LEASES APARTMENTS CONTINENTAL REALTY 487-596- 44118 3 1471 South Uth EMt Salt Lake City, Utah Mips 27 On November 9, 1971 George Littley traded 310,460 . - Gordon Wilson Chev. Inc. vs D. A. O'DRISCOLL; Pt $63.88; bal due 44493 - Nationwide Finance Co. of South Salt Lake vs shares ofstock, STEVEN L. WEBB AND THERESE PERRY; but he Pltf$356.22 bal due doesnt have any FLASH customers. W-'-'- n COPIES NOW 5c 38 WEST SECOND SOUTH Salt Lake City, Utah 84101 (801) EQUIDYNE Arrow Press Square Building No. 2, Suite 380 Salt Lake City, Utah 84101 521-88- 80 359-279-3 1 j' T.feA- - - |