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Show The Supreme Court of The State of Utah Bn Malcolm N. McKinnon, Plaintiff and Appellant, No. 13553 ment, written or oral, and pleaded the Statute of Frauds, Sections 3, U. C.A. 1953, and the Statute of Limitations, Section 25-5- -1 and U.C.A. 1953. v. The Corporation Of The President Of The Church Of Jesus Christ Of Latter-Da- y MONDAY, DECEMBER 23, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE TEN FILED December 17, 1974 25-5-- Saints, a corporation, Defendant and Respondent. Allan E. Mecham,, Clerk CALLISTER, Chief Justice: Plaintiff initiated this action to recover fifteen million dollars in damages which he allegedly sustained by defendant's breach of an oral contract to convey a haulage way for coal over certain federal lands in which defendant had a leasehold interest. After engaging in extensive discovery, defendant moved for summary judgment, which the trial court granted. Plaintiff appeals therefrom. In February, 1959, plaintiff sold the fee title of a 480 acre parcel of coal bearing land to defendant for the sum of $264, 000. In March of the same year, plaintiff proposed to withdraw his application with the Bureau of Land Management to lease a 640 acre tract immediately west of the initial purchase, and if the church were granted the lease that it assign a portion of the property to plaintiff so that he might develop a practical haulage way around the fault. Thereafter on June 18, 1959, Cooperative Security Corporation, through its President, Henry D. Moyle, applied for a lease of the government land; on March 1, 1962, the lease was granted. Prior to the government's granting of the lease, plaintiff's legal counsel discussed the matter with Mr. Moyle and explained that no one knew the length the fault extended and that possibly it continued into the federal land. Mr. Moyle expressed the view that plaintiff could be accommodated and a right of way granted, if it were necessary ' in the conduct of his coal mining operation. Plaintiff submitted two checks, each in the amount of $7,000, which were dated June 28, 196Q. These checks were never cashed but placed in a file with a notation that they were for a right of way and that the matter was pending. In his deposition plaintiff stated that these checks were a cash donation to defendant but that they were not to be cashed until the federal lease was granted and the right of way was granted to him in writing. In the deposition of plaintiff's legal counsel, who conducted the negotiations for the right of way, he stated that prior to Mr. Moyle1 s death they discussed the possibility of the exchange of property owned by plaintiff in the Clearcreek area for the property upon which were to be the haulage rights. Plaintiff's counsel conceded that the specific terms were, to be determined after the federal lease was acquired; however, after this event occurred, he never proposed specific terms and consequently no formal written agreement delineating the bargain was executed. In December, 1966, Cooperative Security Corporation granted an option to Peabody Coal Company which included the federally leased lands. In February, 1967, plaintiff contacted defendant in regard to the right of way. On June 1, 1968, plaintiff granted an option to Peabody Coal Company and subsequently executed a thirty year lease. Plaintiff concedes that there was no adjustment in the price for the lease he granted to Peabody because of the potential problem created by the fault.' Plaintiff filed this action April 12, 1972. Plaintiff predicated his claim on the theory that defendant had transferred its interest to Peabody Coal Company without reserving a right of way for plaintiff and prior to plaintiff's ascertaining whether the fault line, in fact, traversed defendant's leased property. In its answer, defendant denied the existence of any agree Residential And Commercial Construction Company and State Insurance Fund, Plaintiffs. There is no writing in the record which satisfies the Statute of Frauds, U. C.A. 1953. Plaintiff has urged that the relinquishment of Section his preferential right to lease the federal land constituted sufficient part performance to take the contract out of the Statute of Frauds. The doctrine of part performance is not available in an action at law for monetary damages for breach of an oral contract to convey land. 3, Plaintiff further urges that defendant was estopped to assert the Statute of Frauds or Statute of Limitations. In Ravarino v. Price this court explained that an estoppel will not arise simply because of a breach of promise as to future conduct or because of a disappointment of expectations of an executory agreement. An excep-tio- n is recognized when a misrepresentation as to the future operates as an abandonment of an existing right of the party making the misrepresentation, i. e. , the promise as to future conduct must constitute a manifestation that the promissor will abandon an existing right which he possesses. Fraud, generally, cannot be predicated upon the failure to perform a promise or contract which is unenforceable under the statute of frauds, for the promisor has not, in a legal sense, made a contract; and, therefore, he has the right, both in law and equity, to refuse to perform. In Easton v. Wycoff this court stated that the doctrine of promissory estoppel had been extended, in a limited form, to those cases concerned with the Statute of Limitations or the Statute of Frauds, where the promise as to future conduct constituted the intended abandonment of an existing right of the promissor. However, a mere promise to execute a written contract and a subsequent refusal to do so is insufficient to create an estoppel, although reliance is placed on such a promise and damage is sustained as a consequence of the refusal. The acts and conduct of the promisor must so clearly manifest an intention that he will not assert the statute that to permit him to do so would be to work a fraud upon the other party. Plaintiff has marshalled a plethora of factual issues which he urges must be resolved by a trial, but none involves conduct on the part of the defendant that is tantamount to a representation that it would not avail itself of the Statute of Frauds or the Statute of Limitations. The judgment of the trial court is affirmed. Costs are awarded to defendant. WE CONCUR: A. H. Ellett, Justice R. L. Tuckett, Justice CROCKETT, Justice: (Concurring) I agree with the affirmance of the judgment, because the trial court could determine as a matter of law (1) that no contract was entered into; and (2) that in any event, the plaintiff could show no damage, because he sold his property without any lessening of the price due tb lack of the easement. Henriod, Justice, concurs in the views expressed in the concurring opinion of Mr. Justice Crockett. 1. Baugh v. Darley, 112 Utah 1, 184 P. 2d 335 (1957); Ravarino v. Price, 123 Utah 559, 260 P. 2d 570 (1953); Baugh v. Logan City. 27 Utah 2d 291. 495 P. 2d 814 (1972). 2. Note 1, supra. 3. 4 Utah 2d 386, 295 P. 2d 332 (1956). capricious and we are of the opinion that the decision of the Commission was based upon credible evidence. 1 The decision of the Commission is affirmed. No. 13230 I CONCUR: FILED V. December 12, 1974 Industrial Commission of Utah and Gary Lynn Eskelson. Defendants. Allan E. Mecham, Clerk F. Henri Henriod, Justice CROCKETT, Justice: (Concurring) I concur. TUCKETT, Justice: Certiorari to review an award of compensation to Gary Lynn Eskelson. The question the Court is to determine is whether there is competetent evidence from which the Commission could find that there was an accident in the course of employment which resulted in his being unable to work for a period of time and also for medical costs incurred in relation thereto. On November 5, 1970, Eskelson was employed by Residential And Commercial Construction Company as a carpenter's helper. On that day he was engaged in moving lumber and after he had completed that task he was unable to straighten up. Eskelson described the pain which ensued as being sharp and severe in the lower back and down the backs of both legs to the ankles. Eskelson continued to work until about 30 minutes before the usual quitting time when he reported the incident to the foreman and went home. Eskelson did not return to work until September, 1971. Various diagnostic procedures were undertaken with uncertain results b attending physician who then performed an exploratory operation. of the operation a bone chip was excised from Eskelson' s the course During back. It was the opinion of the medical panel that the bone chip resulted from a congenital anomaly rather than from trauma. The chairman of the medical panel was of the opinion that Eskelson's problems were consistent with the lumbosacral strain brought about by lifting, bending and twisting in the course of his ordinary work. The hearing examiner nevertheless found that the lumbosacral strain suffered by Eskelson was an unanticipated and unintended occurrence, different from what would normally be expected to occur in the usual course of events. This finding was adopted by the Commission. The hearing examiner and the Commission concluded that Eskelson had suffered an accidental injury and was entitled to compensation for a period of twelve weeks in the sum of $693. 60 and that the plaintiffs were ordered to pay the medical costs incurred including the cost of the exploratory operation. by Eskelson' Plaintiffs have failed to show that the Commission was arbitrary or I. T. Park Utah Consol. Mines Co. v. Industrial 150 P. 2d 116; Purity Biscuit Co. v. Industrial P. 2d 961; Baker v. Industrial Commission, 17 I agree with the proposition pointed out Commission, 106 Utah 464. Commission, 115 Utah 1, 201 Utah 2d 141, 405 P. 2d 613. by Justice Ellett: that the to an is identifiable as distinguished from accident predicate compensation a gradual development because of the nature or conditions of one's work. BUt it is also important to have in mind that it is the exclusive prerogative of the Commission to find the facts; and that it may consider not only all of the direct evidence, and the expert testimony, but may draw such inferences as are reasonably deducible therefrom. The difference between the Pintar case he cites, and others of that character, where the Commission found that the disability was a result of the gradual development, and the instant case, is that here the Commission believed and found that the unusual pain which occurred in Mr. Eskelson's back on the afternoon in question, which became so severe that he could not continue the work he had theretofore been doing, was such an accident resulting in the course of his employment. While I concede that it appears to be a close case on the facts, in view of the Commission's prerogative in making the findings, I agree with the main opinion that it does not appear to be so without foundation in the evidence that it should be reversed as capricious and arbitrary. 1 ELLETT, Justice: (Dissenting) I dissent. Mr. Eskelson had a congenital back problem instead of an accident. The medical panel which examined him found that even if an accident had occurred, the complaint he made was not related thereto. He testified before the Industrial Commission as follows: I believe the day was November the 5th, when I reported the accident. That's what it shows on the record, I think. I was in my everyday routine, and about midmorning, I noticed that my back was quite sore. And I didn't want to say anything, so I worked through the day. And I quit about a half hour early . |