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Show MONDAY, AUGUST 5, 1974 PAGE THIRTEEN INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court of The I distent. The trial court committed error in several particulars. In the first place. Dr. Bell as an expert witness should have based his opinion upon facts stated in the form of a hypothetical question and not upon testimony which he had heard. There was considerable conflict in the testimony given. The witness may have based his opinion upon testimony which the jury did not believe. error However, while this was error, it need not necessarily be reversible because it could have been cured by cross-examinati- on. The other errors regarding damages as set out below in my opinion require a new trial. The Lambs filed their complaint in three counts which they denominated "Causes of Action, to wit: 11 For rescission of the contract; 1. In the special verdict, it would seem that the, election might be made after verdict and the court enter a correct verdict. However, no such election was ever made in this Case, and I do not think the error can now be cured. 1, The prevailing opinion indicates that Section Utah Code Annotated 1953, as amended in 1965, permits double recovery. Such is not the case. 1. Rule 18, U.R.C.P. 2. There are some exceptions for punitive damages in contract actions such as In cases of breach of promise to marry and those against common carriers and public service corporations. See McCormlck on Damages, Hornbrook Series, Section 81; also 25 C. J.S., Damages, Jl20L This section says that rescission and rejection or return of goods are not inconsistent with a claim of damages for fraud and that such a claim may include all remedies under the chapter. ' Here the Lambs neither rescinded nor rejected the goods, and the section has no application to this case. and Besides, the remedies of the buyer are set out in Section 20A-2-7a that section does not afford double recovery. 70A-2-72- . U, 2. For damages for breach of contract; and For damages for fraud. 3. By our Rules of Civil Procedure, inconsistent causes of action may be one complaint. 1 This joinder of causes of action does not mean that in joined more than one recovery can be had on one set of facts or that recovery can be had under two inconsistent causes. The principle is important in the Instant matter because the trial court submitted a special verdict to the jury, and in its judgment based on the answers to the interrogatories contained in the special verdict the trial court permitted a recovery under two of the theories presented In the complaint, to wit, for breach of contract and for fraud. It awarded punitive damages in the sum of $10, 000, which would not be permitted under a breach of contract,2 and $20, 000 attorney's fees, which could not be given in the fraud count. Of course, a party to a contract who is defrauded by the other party may waive the contract provisions and sue for damages based on the tort. If he does o, he may not recover attorney's fees pursuant to the contract. In this case the appellants did not raise this point on appeal. However, even if there is no assignment of error on appeal,, we may notice a matter of law which appears on the face of the record when necessary to do justice between the parties. See Universal Indemnity Ins. Co, v. Tenery, 39 P. 2d 776, 779 (Colo. 1934), where it is said: There Is no assignment of error directed to this point, and rule it would not be considered ordinarily under the the court but notice may by us; questions, not raised by the assignments of error, that appear on the face of the record, when such consideration Is necessary to do justice. Citation omitted. Included in the total amount of the judgment entered against the garnishee herein was the award of exemplary damages against defendant Callahan In the sum of $1,000 The Ineurance comnot did and under no contract was in this pany wrong, participate to indemnify against such. . . . The injured will not be allowed to collect from a nonparticlpatlng party for a wrong against the public. For the reasons above stated, the judgment should be modified by the deduction of the $1 , 000 included as exemplary damages. The Lambs bought ten heifers and promised to pay therefor $25, 000. They kept the heifers and were given a judgment In the amount of $33, 000 without any deduction for their unfulfilled promise to pay for the cattle. Likewise, the jury answered that the Lambs sustained damages in the amount of $27, 500 because of the failure of Fuyard I to be a breeder, without any deduction for the amount remaining unpaid on that animal. If a defrauded person pays $10, 000 for a bull and the animal were worth $10, 000 if as represented but only worth $1,000 as It Is, then the damage is $9, 000, and the purchaser is made whole by getting a judgment for that amount. He has a $1, 000 bull and Is out only $1, 000($10, 000 minus $9 000); but if the purchaser buys the same bull on credit and gets judgment for $9000, he has the bull and a judgment of $9, 000 and is not out one cent. It thus is obvious that the unpaid amount of the purchase price must be deducted from the measure of damages assessed based on the difference between the value as represented and the value as is. The heifers purchased from the Bangarts were shipped to the Lambs In March of 1968. The court Instructed the jury as follows: If you find that defendants misrepresented the blood lines of the heifers to the plaintiffs, you will then determine the amount of plaintiffs' recovery. The proper measure of damages is the difference between the market value of the heifers If they had been as represented and their value as unregistered heifers on December 1st, 1968. . well-settl- ed .... Also, the case of Wagner v.. Coronet Hotel, 458 P. 2d 390, 394 (Aris. 1969), is In point. In the opinion the court said: "An error going to the foundation of the action will be noticed and reviewed on appeal whether or not It was ' assigned. The Lambs made, no tender of rescission and apparently abandoned their first cause of action, In the judgment which they caused the judge to sign, they included an award of attorney's fees pursuant to the "Second Cause of Action" and an award of punitive damages. under their "Third Cause of Action." They were entitled to have the jury give a verdict on one or the other theory under. proper instructions but not on both. Since the questions were answered so-call- ed T Gerald Percival and Leonara Kay Percival, Plaintiffs and Respondents, The court then repeated the Inotructlon word for word with only two intervening Instructions. The instruction Is erroneous. The true measure of damages. If any, would be the value of the animals had they been as represented less their value as they were at the time of sale. If there were any special damages accruing because of the fraud or breach of warranty, they should be pleaded and proved. The Instruction seems to follow the rule pertaining to land where the plaintiff may recover from a prior warrantor the value of the land at the .time of eviction. This rule Is not applicable to chattels. This rule U. C A. 1953, as Amended is not affected in this case by Section in 1965, which provides that in an action based on "anticipatory repudiation" before the time of performance the value of a chattel shall be determined as of the time when the aggrieved party learns of the repudiation. This is an action in fraud and is not based on anticipatory repudiation. I would set aside the judgment and remand for a new trial arid .would award costs to the appellants. 70A-2-72- FILSD Allan E. Mecham, Clerk ELLETT, Justice: Plaintiffs sued defendants, taking that defendants be ordered to lf acre of specifically perform and to convey by warranty deed a 1 land. Plaintiffs did not ask for rescir.nSbn or for damages. one-ha- acre. Plaintiffs paid Defendants had advertised for cale one-haa and received as earnest receipt indicating that the money money $1,000 one-haacre building lot. Before the earnest money was paid, the lf was on land was pointed out to plaintiffs by defendants, and they examined it. The property was to be surveyed in order to obtain the proper description, and of the survey fee. The defendants told the parties were each to pay one-ha- lf the plaintiffs that the east line of the property being sold would have to be eight feet west of an old building located on the land being retained by defendants.2 Mr. Percival was present when the survey was made and expressed satisfaction with the land included in the survey. The plaintiffs paid the purchase price and received the. warranty deed pursuant to the survey, a copy of which they already had. The deed described the land by metes and bounds as a rectangular area 114. 5 feet by 165 feet. )t did not indicate the area of the property either in square feet or by acreage. Later plaintiffs discovered that they could not erect a duplex and keep horses on the property unless they acxe of ground. They then commenced this suit. owned at least one-ha- lf lf The plaintiffc proved at trial that the defendants represented that they acre of land, and the trial judge ordered the defendants were selling one-ha- lf to convey by warranty deed certain described property containing an area 132 165 fett. The law is stated in 23 Am. Jur. 2d, Deeds 249 and 250 as follows: Where the description of premises conveyed in a deed is definite, certain, and unambiguous, extrinsic evidence cannot be introduced to show that it was the intention of the grantor to convey a different tract or that he did not intend to convey all of the land described. Hence, generally speaking, neither 1. Plaintiffs admit in their pleadings that defendants offered to pay back the purchase price, but plaintiffs refused to accept it. 2. In order fo- the defendants to remodel the old building as they intended, the coning ordinance required the building to be set back at least eight feet - ' from the property line. party can sKw by extrinsic evidence that more or less passed than. is described in the deed referred to. Evidence which pur-- '. ports to show that the grantor intended to convey land different from that which, by unambiguous words, the deed purports to convey will not be received. In other words, where there is no inconsistency on the face of a deed, and, on application of the description to the ground, no inconsistency appears, parol evidence is not admissible to show that the parties intended to convey either more or less or different ground from that de, scribed. Plaintiffs got the very land which was pointed oat to them and which Was surveyed in Mr. Percival's he would have found that the deed presence. If he had used simple arithmetic, 3 These plaintiffs got what their deed conveyed only 18, 850 square feet of land. calls for, and they cannot get more by way of a suit for specific performance when the land covered by the deed has already been delivered. There was no ambiguity whatsoever in the deed given. . The judgment is reversed. Costs are awarded to the appellants. WE CONCUR: E. R. Callister, Jr. Parol evidence is admissible to show that a mistake was I . made in the description of the land in question where there are sufficient other facts in the description to identify the land. However, the purpose of admitting extrinsic evidence with respect to the description of a deed is to explain an ambiguity or to locate the property conveyed on the ground, not to alter or contradict the instrument; hence a court may not, on the theory of correcting an ambiguity, in effect reform the deed. July 31, 1974 Floyd W. Cooper and Anne Cooper, his wife, Defendants and Appellants. 3, . Crockett, Justice, concurs in the views expressed in the dissenting opinion of Mr. Justice Ellett. No. 13548 v. feet by State of Utah , Chief Justice |