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Show TUESDAY, AUGUST 1, 1972 THE DAILY RECOKD PAH VOUt In The Supreme Court 01 The State Of Utah No. 12602 Merlin Jackson, Plaintiff and Respondent, an id Lothaire R. Rich, Defendant and Appellant. L. M. Cummings, Clerk The plaintiff brought this action for work performed and material furnished. Trial was to a jury, which rendered n verdict in favor of the plaintiff for the sum of $1229, less rent owed to defendant of $490, for a net amount of $739. The evidence clearly shows that the plaintiff never paid any cash to ths defendant for rent and that on May 16, 1969, the defendant evicted the plaintiff from the building. The record does not show whether the eviction was made pursuant to a court order or otherwise. Res judicata is an affirma1 tive defense which must be pleaded, and since it is not raised in this case, it does not matter how the eviction was consummated. Q Did you at that imc. ecr agree believe I I later to accept it as credit on the rent? was forced into having to accept it. I was never for such further The judgment is reversed and the case remanded meet aiui proper in or r o in harmony with this opinion ns may be to the appellant. lo justice between the parties. Costs are awarded Therefore, in this lawsuit, even though you find the Plaintiff had failed to pay the rent each month ae required, if you should further find that the Plaintiff provided labor and materials in remodeling and renovating Defendant's business in an amount equal to or in excess of the rental required, then, you may find that the Plaintiff was not in default and would be entitled to require the performance of the Defendant under the terms of the agreement. In the event you should so determine the facte from the evidence, then you may find that the Plaintiff is entitled to damages from the Defendant in the amount of labor and materials furnished, less an offset in the amount of the rental due, if any, for the period that the Plaintiff had the use and possession of Defendant's building. By this instruction the court made a new contract for the parties. The agreement was that Mr. Jackson would pay $70 per month cash and would be allowed an additional $70 per month in labor and material, provided the eame was furnished. Mr. Rich never promised to pay cash for the repairs to be made to the building. He merely agreed to permit Mr. Jackson to have credit for one half of the rent for labor performed and material furnished in making those repairs. By failing to pay $70 per month in cash, Mr. Jackson first breached the contract, and he cannot now complain because Mr. Rich evicted him. If he had any reasonable grounds to think that he did not owe any rent to Mr. Rich, he should have resisted eviction and used up the value of his labor and material in continuing in possession under hie rental agreement. The law regarding the rights under a contract of one who first breaches U.R.C.P. Jur. Jr., E. R. Call ister, R. L. Tuckett, Justice Chief Justice Henriod, Justice, concurs in the result. CROCKETT, Justice: (Dissenting) It appears to me: that the issues in dispute between these parties were fully tried and determined in accordance with the spirit and intent of our Rules of Civil Procedure; that a jury, under careful and proper instructions from the court, has made findings and determination thereon; that they have been given approval by the trial court; consequently it is iny opinion that the judgment should not be overturned. Rule 15(b) provides that: The trial court instructed the jury as follows: in 17 Am. IU1 pro-:eedin- gs The defendant owned a building and rented part of it to the plaintiff, for a price of $140 per month, one half of which was to be paid in cash and on half credited for repairs to the building which plaintiff was to make. The parties agreed that Mr. Jackaon was to be allowed credit on the rent at the rate of $3. 50 per hour for work done and wholesale coat plus 10 per cent for material purchased and used in connection with the repairs being made. it is set out flil paid for it. ELLJETT. Justice: Rule 8(c), nil A No, A 1. tv FILED June 27, 1972 v. . tot and the work the work that was done on the motel Autfi Parts, did you ever agree On 2d, Contracts $365, as follows: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the as may be necessary pleadings. Such amendment to cause (hem to conform to the evidence . . may be does to amend so . made at any time, . , but failure not affect the result of the (rial of these issues. ... ... . Rule 54(c)(1) provides: every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if (he party has not demanded such relief in his ' . . and it may. when the justice of the case pleadings. requires it, determine the ultimate rights of the parties on each side as between or among themselves. The agreement between these parties was based on their oral conversations and letters referring to them. As to definiteness they leave a great deal to he desired. Accepting the premise that as to the portion of defendant's ommercial property rented to the plaintiff the $140 per month was to hi paid "(70 in cash and the other $70 in labor and materials, there is no reason I know of why the parties could not modify such an agreement, jw. will be uecjn lndi.iv. this was the view taken by the trial court and ti n basis upon which the issues were submitted to the jury. There is ample basis in the to support the plaintiff's conthe defendant request'. the plaintiff to work on other parts of tention that the defendant's coniinei cial properl complex and promised to jay him at the same rates, that is, $3.50 per hour for labor and cost plus 10 per cent for materials, and that the plaintiff did so in compliant': with that request. I It is the plaintiffs cuntent'ciii that hi furmslu-.such labor and materials of a total value of 1 HO . 2k, and ib'd'ir ling $l0.h2 as an offset for rent he owed, there remained owing $I4T. If., Defendant answered by a denial, and asserted as a defense that the plaintiff was not qualified and licensed to do plumbing or carpentry work; and also rnunterclaimed f r $1500 for alleged damages caused to the premises by the plaintiff. d f As a rule, a party first guilty of a substantial or breach of contract cannot complain if the other party material thereafter refuses to perform. He can neither insist on performance by the other party nor maintain an action against the other party for a subsequent failure to perform. At least, the party first committing a substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure to perform if the promises are dependent. It has also been said that where a contract is not performed, the party who is guilty of the first breach is generally the one upon whom rests all the liability for the nonperformance. . . . It may be that Mr. Rich has been unjustly enriched by the repairs made, depending on whether the repairs were made solely for the business to be conducted by Mr. Jackson or whether they actually enhanced the value of the building or the rental value thereof. It also may be that some form of relief other than an action on the contract is available to Mr. Jackson. However, if he first breached the contract by failing to pay the cash rental to Mr. Rich, he cannot recover a money judgment under the terms of that contract which only provided for payment in rent. The dissent assumes that the issue of unjust enrichment was tried by consent of the parties. Such was not the esse. The defendant objected to the trial of the matter at all, contending vigorously that plaintiff could not sue upon a contract which he had first breached. It should also be noted that there was no evidence of the value to Mr. Rich of the work done. The only evidence given to the court was as to the value of material furnished and the amount of labor performed. There was no evidence of any modification of the contract, nor did plaintiff claim there was any such modification. He himself testified as follows: The issues nist stated were submitted to the jury for determination under instructions which think we re fair, adequate and appropriate as shown by the following pertinent parts: T the narties to an agreement may, by mutual consent, amend, modify or change the terms of the agreement. Such amendment, modification or change of the terms of an existing agreement may be. accomplished by the parties orally, by ,t subsequent written instrument or vn by a course of dealing. The burden to prove any such amendment, modification or change, however, is placed upon the party the plaintiff claiming such fact and this must be established to your satisfaction by a preponderance of the evidence. . . . the Plaintiff has the burden of proving by a preponderance of the evidence as heretofore defined for you that the Plaintiff, pursuant to the agreement between the parties, provided labor and materials in renovating and remodeling Defendant's building. On the other band, the Defendant has the burden of proving by a preond trance of the evidence . . . that the Plaintiff failed and refused to pay the rent . . . andor further damaged the. Defendant's building during the period of time the Plaintiff hod possession of said premises, . . . v was to receive three dollars and fifty cents an hour for the labor and wholesale plus 10 per cent on the materials. Half of the materials that went into this building rental unit, materials and labor that went into it was to be allowed on the rent at $70 a month, which was half of the rent. The other half 1 was to pay him in cash. 1 As to any work done in a part of the building not rented by plaintiff, he claimed that he was to be paid for it in cash. However, he admitted that the total amount of such repairs was only $179. 16, which was less than one half of the rent due under his contract. When questioned on about the he follows: as testified agreement, cross-examinati- on - - ir nnr one .vi i, law for the amount f th.; bvre-ftheory of which the defendant has received due the i in pro ernTrTV :vin,i.. the plaintiff on rhe propr. of IV dv V ing this theory, the plain'iff ear.m- n cover for all of the time and nuinty put in by l i u, but only the actual worth of the work and material to .'efonnant, . . .. a determining the value of the benefit, you are permitted to consider as an offset any suiu which it has cost the defendant to improve on the work done to nu et the standard agreed upon by the parties, either expressly or implied, in the event you - Hit- - , - - i . - q |