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Show MONDAY, FEBRUARY 5, 1978 THE DAILY RECORD PAGE THREE In The Supreme Court Of The State Of Utah Alva Lou Hatch, Plaintiff and Respondent, checks for a lesser amount than was claimed to be due might be evidence of parties intended to interpret the contract, there was pot an account stated in any sense of the word. The plaintiff, who needed the money, accepted the checks as paid to him, but there never was any agreement that he would be satisfied with this arrangement. He was constantly toid by the defendant's officials that they would pay him for all of the ore whch he delivered. The defendant was just not satisfied with the amount of ore which plaintiff claimed to be delivering to it. Defendant is in no portion to complain about the judgment rendered, since the jury found that the piaintrfl delivered the amount of ore which he claimed to have delivered. how the No. 12951 v. FILED Ziegler Chemical January 30, Mineral & 1973 Corporation, Defendant and Appellant, L. M. Cummings, Clerk m m ELLETT, Justice; The plaintiff offered to install scales to weigh the ore, but this was not satisfactory to the defendant. Pursuant to a written contract with the defendant, plaintiff mined gilsonite ore from the defendant's mine and hauled it to its processing plant, for which he was to be paid $17 per ton. The dispute in this case arises over the amount of tonnage which was delivered to the defendant. This appeal is from a judgment in favor of plaintiff. This suit is for the amount oi money withheld by the defendant for a claimed shortage of ore. The case was submitted by the trial judge on special interrogatories to the jury, and the jury found that the amount of ore delivered to the defendant's dump site was accurately measured by the plain tiff and that he should be paid for that amount of ore. The evidence was undisputed that gilsonite has a specific weight of 1.07 in place and that by measuring the spare occupied by the ore, the weight can be accurately determined- T: defendant made no effort to measure the space. The ev! dence further showed that broken gilsoiiite such as was delivered to the de fendant had a weight of 44 pounds per cubic foot, and there was no dispute as to the number of cubic feet in the plaintiff's trucks. There was also no dispute that the trucks were loaded to full capacity each time. There were no scales within 90 miles of the work being done, and for that reason the plaintiff occasionally weighted a truck load of ore, and by loading the truck completely full each time took the weight actually made as being the weight of the ore delivered by each truck load. In addition, the plaintiff occasionally counted the number of buckets of ore placed in the truck and weighed .each bucket to arrive at a check figure. This method of weighing ore in the industry, isolated as it is away from scales, is the accepted method of calculating the weight of ore mined and delivered. In fact, it was the method used by the plaintiff and his employees in calcu-latin- g their pay for ore mined. The defendant processed the ore, and there is testimony to file effect that in processing the ore there would be a loss of from 5 to 55 per cent of file ore. The defendant claimed that it should pay to the plaintiff for ore delivered based on the tonnage which it sold to its customers. - think that there is no error in the findings of the jury and that the evidence fully supports the jury's conclusion. We The defendant also assigns error on the part of the court in refusing to idmit in evidence testimony as to th amount of money prayed for in the complaint filed by plaintiff in another action against the defendant. The court sustained an objection to the question and gave as his reason that it and further it did not appear what the other was improper suit referred to and therefore would be immaterial. Thereafter the defendant did not pursue the matter and made no effort to prove by his own witnesses what the amount prayed for was or what the basis of the former suit was. We have considered other assugnments of error made by the defendant and find them to be without merit. After paying for the ore based on the delivery weights for a time, the defendant decided that it was not selling as many tons as it was paying for and unilaterally began to deduct 15 per cent from all payments thereafter made calculated on delivery weights as claimed by the plaintiff. It makes the assertion that by accepting the checks drawn, the plaintiff acquiesced in the contention of the defendant and that there was thus an accord and satisfaction of the matter and the contract should have been interpreted as agreeing that the claimed weight minus 15 per cent was the correct tonnage. cross-examinati- Quit Claim Deeds Release of Mortgages 703 8l5 Janes I, Griffith to Nicholas Anselno etux. William to Jack G. Phelps etux. 821 First Security Bank First Security Bank Baird etux. 822 788 Morris D. Webb LLoyd R. Snarr etux. to Richard F. Smith. S. Roes 823 First Y. 828 829 839 Bridge etux. 81(8 2512 868 Roy G. Kehr 852 Melbj Smith to Ruth t to 0 Ru Lois 866 Tom B. Wilcox etux to Road Runner Inn. Richard V. Moyle etux 923 James D. Moyle, Tr. to American Sav to Keith B. etux. Sav. An. A th L. H. Brockbank etux Richard F. Stokes etux. Loan to Keith B. Hogan etux. to 655 John C. Barnes V. Barnes etux. 657 R. V. Barnes etux to Riddle Inc. to Enterprises to Salt Zions 1st Nat. Bank to Verland Baline Turner etui 870 Bank 077 State Road Commission Upwall Const. to Non-stop- ... Mid-summ- departures er to ttn. Building Supply. 901 907 M. M. K. D. to Kenison etux. State Sav. to Delob el etux. 9 1(3 Bank McGhie Land 977 Roger A. Title, Tr. Dial fin. to Donald Donald etux. Dial Jin. to Donald Donald etux. 536 Marlon N. Bums to Ruth Burns Crus. Me Me Sheridan P. Gortat to Villi on L. Gortat. SI Board Realtor Cr. Barnes etux. V. R. 651(3 681( John A. RoldLch etux Heber Stokes etux. 692 Joyce S. Orton V. Webb atux. 1973 MODELS I ANY MARI OR MODEL ORDER NOW!! fl to to R 4 This " 665 to J Richard Andersen etux. 976 Read A. Calcateera to Jands F. Huntsman atux. on this newly government-approve- d charter program upon request from Murdock Travel. Fly in brand new DC 1 0 luxury jumbo jet. No group membership necessary. Act soon! Early reservation required. Phone or mail coupon today. Full details Curtis etux. 1st Nat. Valter Quit Claim Deeds to etux Prud. Fed. Sav. to Boyd C. Christoff arson etux. 927-930Zi- ons 935 Curtis etux. Kenneth White Bartley 911 K. Round trip to Kenneth Hhite etux Bartley 910 6030(93 Security Title, Tr. to J A' K Enterprises. . I IA CAUJOB SVITAK I 262-92- 37 73 Msrcurys, Contk., Mark. IVt, ready for Immediate delivery new! Mcwiy fare is subject to a possible increase ot no more than 20 percent ($334.80). I Murdock Travel, Inc. 14 South Main SL Salt Lako City, Utah (801) Please send me your Charier Brochure. S21-78- Ffttf MAINTfNANCI A UnNMD WARRANTY AVML ON SOflU Name 71 DON RICHARDS to . Dean State IEASINO. INC. 3469 SOUTH STATE , zsss MM 50 Barton etux to R. R. Mont McDowell to Frank Dowell etux. 869 Lake City. to Ray 072 Sav. to Daniel V. Rideout etux. An. of Salt Oknni to Salt Lake City 2513 067 Lake Morton Inv . . Const. NOW! Charters to Investments . G A G 610 602 John E. Jr Hansen etux Dennis C. Grob etux. Louis V. Sellenatt etux 989 etux. Tr. to 92h Wllford M. Burton, James D. Moyle, Tr. National Prud. Life to Paris Lionel Vinner etux. Jr., J. Prod. Fed. Sav. to Kennetl V. Dollard etux. etux. Peck 60li Trayner Const. Edna V. Vade to Johnny M. Valley Center Bldg, to Craig C. Merrill etux. ' "i1 Don- Richard. Prows Inc. to Perry L. Butler etux. etux to 8lli Ruth F. Hansen F. Hansen etux. Ross to H. e 606 Dial Bldrs. Inc. to 599 Kehr. Hogan 81(9 to Brewer Fairdough Qyong 81(0 etux. McQuivqy Sec. Bank 813 ald Jenson etux to Alvin P. Visa etux. 2512 595 L. to-th- Warranty Deeds Ester Jensen to Richard Dial Fin. to Richard D. Nelson ethx. 705 Costs are awarded The judgment of the trial court is affirmed. respondent. The answer to that contention is that while the acceptance of the 799 on |
