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Show J MONDAY, MAY 6, 1974 In The Supreme Court Of The FIRST ACCOUNT June 25, 1953 July 16, 1965 October 1, 1965 $4,000 1,000 3,000 SECOND ACCOUNT August 9, 1963 April 1, 1965 $1,000 1,000 THIRD ACCOUNT 1966 September 25, true. $2,000 FROM ESTATE OF PLAINTIFF'S FATHER . $3,000 July 1, 1967 this latter item a which is not in dispute Accepting the statement of the trial court that there is "irreconcilable conflict" in the testimony, it follows that the defendant has not proved its affirmative defense of failure of consideration by a preponderance of the evidence; and concomitantly, the recital that the plaintiff's claim of payment "is not supthe burden ported by a preponderance of the evidence" is in error of proving the contrary of the affirmative defense upon him. The defendant having so failed to meet its burden of proving failure of consideration, that defense fails; and the plaintiff is entitled to an accounting of the face amount of the bond in question, with 10 interest as specified therein, from the date of the issuance of the bond. g separate bond was issued here. ) It is unnecessary to recite the mathematical computation as to credits for interest, or as to withdrawals. The vital fact is that if plaintiff is entitled only to the deposits just listed, the judgment is correct. But if he is entitled to credit for the $10, 000 bond from the date of its issuance, instead of as paid for by later deposits, the judgment is short by the difference in those compu- tations. i State Of Utah The Court finds by reason of the testimony ef the parties hereto as aforesaid that there is an irreconcilable conflict in the uncorroborated sic testimony of the plaintiff, and the President and general manager of the defendant company, and the Court finds, by reason thereof, that the plaintiff's claim to the deposit of an additional $6, 000. 00 prior to July 1, 1963, above and beyond those deposits reflected on the records of the defendant company is not supported by a preponderance of the evidence and is found, by reason of that fact, to be not for reasons not clear in the record, and immaterial anyway, were placed in three separate bank accounts: (On PACE SEVEN INTERMOUNTAIN COMMERCIAL RECORD t In January 1972, plaintiff went to the defendant to withdraw all deposits. After considerable discussion and figuring Mr. Haycock gave him a check for $1,977.40, insisting that that was his balance. After subsequent demands by plaintiff this suit was commenced. The position asserted by the plaintiff is that the bond is a negotiable instrument; that as a purchaser thereof, he is a holder in due course; and that this carries certain presumptions: that it was duly executed by the maker; for a valuable consideration; that it is enforceable according to its terms; and that nothing different therefrom can be shown by extraneous evidence. In' regard to those contentions we make these observations: the payee of such an instrument may or may not be an innocent purchaser for value, or a holder in due course, depending upon the circumstances. Usually, as between the primary parties, to of the evidence rules subject relating to written instruments, evidence may be taken as to the true nature of the transaction. 2 However, even though de- - ' fendant argues'to the contrary, the basic fact is that when it asserts that it had not been paid for the bond when it was issued, the essence of its contention is that there was a failure to pay the consideration. It is true, as plaintiff contends, that this is an affirmative defense which is required to be pleaded, 3 and unless it is, it ordinarily should not be allowed as a defense, unless there was a motion to amend, or the parties acquiesce in the trial of that issue, or the plaintiff was otherwise given notice and an opportunity to meet it, 5 neither of which was done here. Correlated to the foregoing, and of greater importance in this case, is the matter of the burden of proof. As recited above, the issuance of such a bond, negotiable in form, carries with it the presumption that it was given for a valid consideration; and the burden of proof of the affirmative defense of 1. See Christensen v. Financial Service Co. , Inc. , 14 Utah 2d 101, 377 P. 2d 1010; and see Annotation 2, A. L. R. 3d, 1151. 2. See e.g. Great American Indemnity Co. v. Berryessa, 122 Utah 243, 248 P. 2d 367. Rule 8(c), U. R. C. P. , expressly so states. Rule 12(h), U. R. C. P. , provides that defenses not pleaded are waived; and see F. M. A. Financial Corporation v. Build, Inc. , 17 Utah 2d 80, 404 P. 2d 670; Rosenberry v. Clark, 85 Idaho 317, 379 P. 2d 638. 5. See Taylor v. Royle, 1 Utah 2d 175, 264 P. 2d 279. 3. 4. In this regard the plaintiff failure of consideration is upon the maker. urges that the trial court erred in failing to require the defendant to meet this burden, and in imposing the burden of proof as to payment on him as a holder, in its finding which recites: Related to this misplacement of the burden of proof on the plaintiff, and the finding of the trial court resulting therefrom, there are two aspects of the evidence which deserve comment. The first is that it seems quite strange that a banking institution would issue a negotiable bond to a depositor without having been paid therefor;' on only a $4,000 down payment, and with no written contract or other commitment or assurance as to when, how or if the depositor was bound to make subsequent deposits or payments to complete the purchase price. The second fact of significance is that upon the defendant's own version of the evidence, there appears to have been considerable lack of certainty as to its records. This is shown by the fact that the plaintiff met with the defendant in January 1972 for the purpose of reconciling their accounts, and that pursuant thereto the defendant issued the plaintiff a check in the amount of $1,977.47 which it insisted was to pay off the plaintiff and close the account. But in response to plaintiff's demands, it later acknowledged that it owed to the plaintiff an additional $1,942.04. Defendant's manager gave testimony which this writer reads as being something less than certain, that in a con- -' vers at ion with Mrs. Olpin he tendered this amount prior to this suit. This is diametrically inconsistent with the defendant's answer to the plaintiff's complaint wherein it alleged "that all a mount b owed by the defendant to the plaintiff for deposits made by the plaintiff with the defendant, including the debenture bond Exhibit A, has been paid in full." All emphasis herein is ours. The position thus stated in the defendant's anBwer bears upon the propriety of allowing the plaintiff attorney's fees; which are expressly provided for in the bond in case of default. None were allowed even though the court found the defendant indebted for the $1,942 and so awarded judgment.'' The view taken by the trial court was that the amount of the judgment was on the balance. due on deposits, and not on the bond. We do not see this as being 6. .Sec. 7, U. C. A. l95.Medak v. DPrey, 236 Or. 31 , 386 P. 2d 805; cf. Rees v. Archibald, "6 Utah 2d 264, 311 P. 2d 788. 7. Respective counsel made the appropriate stipulation, that if attorney's fees were allowable, the court could fix the amount on the basis of a desig- nated schedule. See F. M. A. Corp. v. Build, footnote 4 above. correct. Whichever way the dispute is viewed, it involved an accounting for deposits which the defendant itself asserts were credited as subsequent payments on the bond, and for which defendant claimed the plaintiff had been fully credited and paid; but which was found not to be a fact. Accordingly, the plaintiff should be entitled to reimbursement for reasonable attorney's fees. Plaintiff has argued other matters which we think it unnecessary to discuss. In accordance with what we have said herein, this case is remanded., to the district court for correction of the judgment, to allow the plaintiff credit for the amount of the $10, 000 bond as of the date of its issuance July 1,( 1963, together with 10 interest thereon; and for the fixing of a reasonable attorney's fee based upon the total judgment as so adjusted. Costs to plaintiff (appellan). ' 70A-3-30- i E. A. St rout Western Realty Agency, Inc., Plaintiff and Appellant, No. 13479 . FILED , April 30, 1974 v. Owen H. Broderick, Defendant and Respondent. Allan E. Mecham, Clerk ELLETT, Justice: This' appeal is from a judgment against the plaintiff and in favor of the defendant on a law action to recover a real estate broker's commission based on an exclusive listing agreement. The defendant is a building contractor. He buys land, erects houses, and sells them to the public. He has utilized the services of the plaintiff in past transactions and in fact used the efforts of plaintiff to trade one of his homes to a third party for a home and cash. He paid a commission to plaintiff for this service. However, the plaintiff was able to get the third party to reduce his price by the amount of the commission. Asa part of the same transaction the defendant signed what is denominated "Exclusive Right to Sell" the acquired home consisting of a printed form with only two blanks to be filled in, viz. : the expiration date and the rate of commission. The dispute in this case involves the following language: If a buyer or transferee ready, willing and able to buy or exchange for this property is procured by you or by anyone else, including myself, I agree to pay you a commission of 6 of the selling price, or a minimum commission of $200, whichever is greater. The defendant persuaded the trial court that the language above was not correct and that he agreed to pay a commission only in case the plaintiff sold the home. The agreement was dated September 16, 1971, and was to expire on March 6, 1972. The other according to the writing in the blank space 6 blank space had the figure written in the blank for the per cent of the selling price to be paid as a commission. The defendant sold the home on or about November 12, 1971, and refused to pay the commission to the plaintiff. He claims that some blank spaces on the back of the agreement were not filled in when he signed his name. Those blanks have to do with a description of the home and equipment located therein as well as the selling price. We think it is, immaterial to this action whether those blanks were filled in or not. There is no claim that the date and per cent written into the agreement were not correct. The question presented to the trial court and urged on appeal is whether the defendant can vary a clear, unambiguous term of a written contract by parole evidence. Two witnesses for the plaintiff testified that all blanks on both sides of the agreement were filled in before the defendant signed it. They also testified that when he said he wanted to reserve the right to make his own sale, they, as agents of the plaintiff, told him it would have to be an exclusive listing or they would not undertake to sell it. The defendant testified as follows: Q. At that time what was said and by whom? A. I don't remember everything. I told them if they sold house the they could have the commission at that time. I don't know if they went along with it. Q. Was that your understanding when you signed this document? A. Yes. follows: The defendant further testified regarding the blanks in the agreement as The printed part was in there, yes. Was the six per cent filled in? They might have just filled that in with their pen at the time I signed it. Q. Did you have a discussion as to how long the listing agreement was to be for? A. I don't remember. The form says six months. That A. Q. A. is all. Q. A. Q. That generally was your agreement? That is what most real estate contracts are. So far as you and I are concerned the only thing we (Contiitutd m page 81 |