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Show THURSDAY, JULY 22, 1971 THE DAILY RECORD FOUR PAGE In The Supreme Court Of The State Of Utah ports the findings and judgment of the rmirt and the same is, therefore affirmed with costs to respondent. North Davis Bank, a Utah banking corporation, Plaintiff and Respondent, v. WE CONCUR: No. 12229 Richard Barber and Alta M. Fogle. Executrix of the Estate of Dan R. Fogle, as Substitute Defendant for Dan R. Fogle, Defendants and Appellant FILED July 19. 1971 C. SAWAYA, E. R. Callister, Jr. , Chief Justice R. L. Tuckett, Justice L. M. Cummings, Clerk J Allan Crockett, Justice A. H. Ellett, Justice District Judge! Henriod, J. Plaintiff filed this action against two defendants, setting forth three causes of action, only the third of which affects the defendant Dan R. Fogle, the appellant herein. He died during the pendency of the action, and by stipulation of the parties, his surviving widow, Alta M. Fogle, was substituted for the said Dan R. Fogle for the purposes of trial. The trial court found that Fogle was indebted to the plaintiff as prayed in the complaint and entered its judgment against appellant, Alta M. Fogle, as substitute defendant, in the amount, including interests and attorney's fees, of $5704. 24. The facts as pertinent to the issues raised by appellant, are that he, Fogle, purchased sand from the defendant Barber and agreed to pay therefor to the plaintiff bank, to apply to the obligation of Barber to the bank, the sum n $5115. On July 11, 1966, Fogle executed an agreement to obtain and secure a bank loan with the bank, under the terms of which Fogle was paid $5415 in order to purchase the sand and he agreed to make payment on die loan at the rate of 50 12 cents for each ton of sand used or removed.,appmw-imatel- y 70 days after the month the sand was used or removed, or in any event, no later than July 31, 1967. The record is clear that neither sufficient sand was used or removed by Fogle so as to total the amount of the loan computed at 50 12 cents per ton, nor was the loan paid in full by the due date of July 31, 1967. The defendant denied that he incurred personal liability under the agreement with the bank, the agreement providing, inter alia: It is understood that the Borrower Fogle is not personally liable for the payment of the $5,415. 00, but that the Bank is relying upon the sale of the sand andor aggregate as the means of repaying the loan. Financing Statements IDS Off; '6 Cher Ch Stan Fteastead; to 87 Off; tv IDS Ch to 619 Oakley; SLC Millard JoArm Leif Anderson; door 8th AvjSLC Gregory Bird; 551W;SLC to Off; washer and stereo LBS Ch tv eond and stereo to Tchrs The contract further provides: Ch the right to satisfy the obligation through its remedies as provided for in the Uniform Commercial Code .... Off; sew Wm to IBS aaoh in full if all the sand necessary to repay the loan had not been used or removed by July 31, 1967. The bank reserved its remedies under the Uniform Commercial Code in the event the loan had not been repaid by that date, and although defendant urges that he incurred no liability under the agreement if sufficient sand was not removed, it is clear from reading the entire document that it was not necessary for plaintiff to prove that defendant did or did not Use 'or remove sufficient sand, but it is only necessary to show that he failed to make the proper payment by July 31, 1967. This, in itself, is sufficient to constitute a breach of the material provisions of the contract. During the trial, defendant sought to introduce evidence of the amount of sand removed by the introduction of a written summary of certain business records apparently too voluminous or cumbersome to be brought before the court for inspection. The trial judge excluded the exhibit on the apparent ground that the written summary could be admitted in evidence only if the original documents were before the court or available to the court and counsel for inspection for accuracy and validity. This court in the case of Sprague v. Boyles Brothers Drilling Co., 4 Utah 2d 344, 294 P. 2d 689, stated: where original book. entries, documents or other data are so numerous, complex, or cumbersome that they cannot be conveniently examined by the fact trier, or where it would materially aid the court and the parties in analyzing such material, that a competent person who has made such examination may present such evidence. This is subject to the limitation that evidence must be shown to be developed from records, . . . the competency of which has been established, and the records must be available for examination by the opposing parties and the witness subject to concerning such evidence. . . . Emphasis added. . . . on In the absence of a showing that the original records were available.to die court and counsel for inspection, it is clear that the trial court's ruling denying admission of the written summary thereof was correct. Defendant further contends that evidence of the quality of the sand, which he contends to have been inferior, was improperly excluded by the trial court. The quality of the sand was not an issue as between the bank and defendant. The bank did not sell the sand to defendant and consequently could' not have warranted its quality. Defendant purchased the sand from defendant .Barber, and any action for claimed breach of warranty would have to be against the seller. The trial court properly excluded evidence of the quality of the sand. . The trial court found that Fogle had paid the bank a portion of the amount due and computed the balance together with interest as provided in the contract and attorney's fees as stipulated by the parties. The evidence sup t Fay Howell; 880 Hillside washerdryer Granite to IBS to Granite Lorraine Purdy; 71 6th Ave;SLC to IBS Ch Off; '6 Chav convertible Granite 70 Opel 2 to dr sedan IBS IBS Ch Off; '69 Vera Stanton; Off; furniture Willard to Ked to IBS VanWagoner; Off; '69 Ch J Hints nan; IBS Ch St; SLC to IBS Ch 11869S1700W jRrrtn Vlkwgn oanper 79E Brldlewood;SLC 925 Pin ewoodjTyls Off; stereo 3IO7S9OOOW; tv vile Magna to to Jas Brlnkerhoff; 1982W330QS:SLC to SL Tele ECU; '68 Ford 4 dr Torino Donna Nash; 1380 Sunset Dr SLC to SL Tele ECU; property insurance andhH good- - TCU; refrigerator Rbt Sturges; 1255E1700S;SLC to Grants tv TCU; Richard Webb; 3679 Granite TCU; EL Glen; SLC to traval-a- ll Jon Westover; 3338S700W; TCU; Magna to dryer Steven Jones; 28l6'W75005; West Jordan Bacchus FVanols Saunders; to SLC to SLC ECU; SLC ECU; MoCoy & shares Meadow Downs; Plant; signature Richard Straup; Ronald Lloyd; 250 Dearborn; SLC Assoc FECU; '70 Ford 2 dr hdtp Assoo FCU; to machine sew Sturges; 1255.7 00S; SLC to Granite dining rm set LeBarob Robinson; 7396 RamaneejMidv to IBS Ch Off; furniture Jos Pasko; to Granite TCU; to LDS Ch to Startln; 322S205E;SLC to Granite sedan TCU; Granite Earl Rose; 1652 Harrison Ave;SLC to IBS Ch Of floe; '70 Ply Duster 2 dr to wgn Phipps; 2910S2520E;SLC to Grant Wayne Off; '70 Ford 3W piokup Derek Harland; stn tv Granite door to Illlnls;SLC to '70 Toyota Leon Spencer; 5156s620W; Kearns Rbt 60 F TCU; Marvin Olsen; 3650S2000E;SLC Granite Tchrs CU; bedrom set TCU; St 3SLC to Vlkwgn 2 5 Rbt Montoya; I325 Norma to David Peterson; 65?S2600E;SLC IBS Ch Off; '66 Ford 2 door 15 Uhiv 209 08 60S SLC to '6 Chrysler stn wgn David Osborne; 58S10E 5 SLC '70 Opel stn wgn Karl Egan; 5500 Brookway;SLC to Ch Off; washer dryer Eva Hall; 926 Cownlngtcn;SLC IBS Ch Off; tv TCU; tv TCU; IBS Carolyn Smith; TCU; Harry Mangus; 2215 E33S; SLC to frzr TCU; Livingston; 219 Iosewood;SLC Randy Concord; SLC tv TCU; Kelvin Lester; 15l6E3900S;SLC to Ranald Whitehead; 129L3SDL800W;Rvrtn to IBS Ch Off CU; furniture Off; to Stanley Hughes; 3587S6935W;SL3 Granite TCU; air eond Granite Ch to Granite Hatch; 1039 Lake;SLC TCU; Granite LnjSLC Off; stereo tv Craig Smith; to 6SOOOW;SLC travel oanfer Stephan Jansen; 275SS;SLC to David Giles; 3777 IBS Ch Off; range CH hdtp Dodge door TCU; to Camille St; SLC Ellis; (65 Granite Ronald Bush; 5655 Cora Way; SLC to IBS Ch Off; '63 Ford 2 dr stn wgn It is clear that Fogle contracted to repay the loan to the hank in installments based upon the amount of sand used or removed during a designated month; however, it is equally clear that he contracted to pay the bank Daniel Toury Genes sy; to Eugene Brough; 1721 Herbert; SLC IBS Ch Off; Aqex display nodal sound center David Bigelow; 88N500E;NSLC '67 Volks 2 door CU; Jn Cox; 656 Leland;SLC to Granite Tchrs CU; saxophone 2 Leola Nance; 91E Carnation Dr;SLC to IBS Ch Off; '6 Volks 2 dr sedan In the event the Borrower fails to use the sand during the 1966 construction season or by July 31, 1967, or should he default in the payments hereunder, the Bank shall have dr Clarke; 121E580S;SLC to Granite Granite Tchs Cr Un; '66 to Crane; 3200E39S;SLC to SLC furniture Richard Brown; 2981 Lemay;SLC to GranlteTchrs CU; '62 Fbrd piokup Chas Off; tv EIML; Sedan Larry Nielsen; 599E9620S; Sandy to FECU; '66 Cad 4 dr hardtop Howard to Jn Cederlof; 2873S220E;SLC to Granite Tchrs CU; '66 Pontiac oonb Duane Jonsson; 309SWT;SLC FECU; bedroom fum IBS Ch Buell Vanderpool; 336s?50W;Kagna EEMLj piokup EIML; Jn Sanson; 2135 Vinont;SLC to FECU; to Utah sprayer, paint Albt ValDes; 172S Orchard; color Zenith tv air 567N8W5SLC easier Carl Johnson; 597S620E; Hirray to FECU; Marjorie Baker; Jay Peterson; 3020E7000S;SLC FVancis Jamison; 1130 Wlndsor;SLC FECU; shares to David Parrish; 182W6200S;SLC to IBS Ch Off; 69 Vlks 2 dr sedan to to 360W3K;SLC Utah Fum Assn; Fum Co; Kenneth Nielson; 569 Oakley; SLC to FECU; ;70 Ford 34 T piokup Defendant contends that for the bank to have a personal judgment against him, it must have been shown that he did in fact use or remove sufficient sand or approximately 10, 800 tons. cross-examinati- does not participate herein. , 680 dryer 633-lO- th Ave;SLC 2 door '59 Chev Impala Evans; 818W9S;SLC to SLC ECU; scope Eugene Hunt; 637 Redondo; ECU; '63 Olds 4 dr stn Orville Keener; SUC ECU; Mark AC ECU; tv r SLC to SLC wgn 6jlE3335S;SLC oanper truck Redwood; SLC to to SLC |