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Show THE SALT LAKE TIMES Page Three FRIDAY, FEBRUARY 6, 1976 Utah Peace Corps Volunteer Aids Rural Health Program in Liberia Utah Supreme Court Opinions IN THE SUPREME This lacoavaaiaacee tha Williamsons ta no aad sad, as you know, they have certain remedies under their contract, suck aa declaring tha full amount dua and payable, which. If they arc aggravated, thay will pursue, la a spirit of har-monit would ba nice If tha payments could ba made oa time so tha re would ant ba aay ferthar friction arlsa. COURT OF THE STATE OF UTAH ooOoo -- Doa Williamses ill Jodi, K. No. 1407k Williamson, Plata: iffa sad Respondents, With kind regards, wa FILED v. January George R. Waalaaa a ad Laraa L. Waalaas. Dafaadaats aad Appalls its. SO. 1974 Allaa E. Mechem, Clark Jaaticai CROCKETT. PUIatlffa Doa aad Catkarlaa Jadka Wllliamaaa brought sail to aaforca aa accalaratiaa claaaa aad damaad for tha aatlra kalaaca oa aa lastalltnaBt oata, gives by tha dafaadaats Waalaaa, as part ef tbs paymaat aa tha purchasa af tha plaintiffs' farm proparty aaar Paradkaa la Cacha Caaaty. A trial la tha caurt rasultad la findings aad Judgmaat la tawr af tha plalatkff, far $11,021. SO, plus Interest, aad alaa for attaraayi' faaa of $2,000. With Tha provision of tha aota partisan! hara arai That "if aay installment la not paid at tha time it bacomae das, tha holders ef this note, at their option, may declare the whole doa aad payable aad that "tha makers .. severally waive prosaist moat for paymaat of this aota. " aad notice af ... Comma aciag June 1, 1971, tha dafaadaats made thalr monthly payments by mall, usstll July of 1973, whan tha difficulties described below occarrad. We fellow tha standard rula that wa view any disputed avid sacs la tha light favorable to the findings aad Judgmaat of tha trial court. la doing so, wa taka certain important state manta, those which are included wlthla ear quotation marks, as plaintiffs assart tha feels la thalr owubrlaf. "Tha evidence shows that tha sailers plaintiffs received lata payments aa 15 of tha 25 payments made, hut tha sailors never acquiesced in or accepted tha lata payments. " Further, "Tha evidence is clear that at least on two occasions, Mrs. WUliamsoa told Mrs. Waalase that tha payments wars to aad . . . oa February 20, 1973, a latter was seat be mads on lima by Charles P. Olson attorney Tha latter eta tad: ... The health center where licensed practical nurse Christine Porter of Magna, Utah works may or may not be busy depending on whether it's rice harvesting or crop planting time. Miss Porter, 25, is a Peace Corps volunteer in this developing West African nation of Liberia, where more than 80 percent of the 1.5 million people earn their livings from the land. Fluctuating attendance at the health centers child health and pre-natclinics, in line with the villagers' planting and harvesting priorities, is simply part of the milieu in which the young graduate of Utah Technical College works. The daughter of Mrs. Donna N. Porter of Magna, Miss Porter is assigned to a small rural dispensary in Sanoyea, a town in the Liberian interior. Since December 1974 she has been helping the dispensary staff provide basic medical care and bring word of available health services to the people of Sanoyea and outlying towns and villages. Miss Porter spends two days a week at the seven-be- d dispensary, assisting with its Thursday prenatal clinic and its relatively new Tuesday child health clinic for youngsters under 5. The remainder of her time is spent in outreach work in nearby towns and villages, explaining dispensary services and urging residents to take advantage of them. She also is working to help set up a regular weekly family planning clinic at the Sanoyea dispensary, to meet a need now served only by mobile units from a government hospital in the vicinity. A noth el of her goals is to set up regular and child health Monday pre-natclinics in one of the outlying towns, mud utilizing an available two-rooal . al m house. The Sanoyea diswas originally built and pensary operated by a Lutheran mission, which turned it over to the Liberian government in 1975. The dispensary is staffed by a physicians assistnat, a health professional whose training involved two years of working closely with a doctor; a registered nurse; a laboratory technician; and a midwife, who is Miss The staff also Porters includes a cleaning woman, whom a Peace Corps volunteer health education specialist is training to teach health and nutrition at the dispensary. Miss Porter said her most stais-fyin- g experience has been seeing the staff people at the clinic take some initiative on their own that ld co-work- ' makes me feel the best. The staff' had been accustomed to working under the direction of the missionaries, she explained. Ive had a hard time telling them that Im not here to tell them what to do, to watch them or run their lives for them," she said. At the health center, Miss Porter's work includes helping to give innoculations, dispense medicines, weigh babies, check the health of expectant mothers, educate women on better health and nutrition practices, and occasionally assist the midwife with deliveries. She and the staff stress the importance of preventive medical care and urge not to wait until they or . patients their families are sick before coming to the dispensary. "We try to get across that food is the best medicine,'' Miss Porter emphasized. "Malnutrition is one of the biggest problems, both among children and pregnant women. Nutrition education for parents can particularly benefit undernourished children, because nutritious foods are readily available. Miss Porter noted. "All foods are available the families just arent feeding them to the children, she said. "Its customary to feed the children at a certain age nothing but soft cooked rice. To boost the nutritional value of childrens diets, Miss Porter advises the mothers to cook crushed peanuts, dried fish or fresh greens) in with the rice. One thing I find very convincing is to tell the mothers to eat nothing but rice for two or three days. They know rightj away what it feels like, she said. Miss Porter also tries to discourage bottle feeding. "Usually when they start bottle feeding, the children start suffering from malnutrition, she pointed out. Inadequate sterilization and knowledge of proper formula proportions make breast feeding, supplemented with solid foods at about six months, much more preferable, she said. At work, she uses a mixture of English, Liberias national lang: uage, and some Kpelle, a local language, with the midwife translating for her when her Kpelle fails. Instruction, however, is not a formal process. Miss Porter and her informally offer as lessons they go about examining and treating patients and conducting outreach programs. The outreach efforts, withtheir emphasis on encouraging people to take advantage of medical services, are having an effect, according to Miss Porter. ... ..." Dear Folks: call from the Williamsons, and are quite concerned aver tha bet that you have baaa somewhat lata, somatimaa as high as three months, la makI have Just had a phoaa they respect to tha occurrence Just delineated, farther slates: Tha dafaadaats appsal, contending that thay wars set accardad thalr aalktlatnaat of rsaaoaabla aotkca aad aa opportaaity ta maha paynaaata car-- r sally dua bafbrs tha daclaratioa of accalaratiaa. During tha sarly part af 1971 tha dafaadaats aagotkatad with tha plain-tif- fs to bay tha lattar'a farm. Both partlaa waat ta tha asms attaraoy, tha lata Charlas P. Olaoa of Logs a. who haadlad tha praparatloa of tha ascaaaary doca-maa- ta. Insofar aa material bars, tha coatract which the partlaa aaacatad provided for a parchase price af $110,975 to ha paid by $1,975 la cash, $$9,000 by tha Waalaasaa obtaialng approval of a loan for that amoaat, aad tha ef $20, 000 by tha aota hara i evolved. It provided for payments of $162.42 prlackpal aad latarast aa tha first day af aach month, baglaalag Jobs 1, 1971, util paid; aad was secured by a second mortgage oa tha property. The Waalaasaa made tha dowa paymaat of $1, 975 aad obtakaad tha $49, 000 loan, which was paid over to tha Wllliamaoas. ara, ate. After this latibr there decs not appear to have base any further difficulty about tha paymaata uatll five mouths latar, la July, 1971. Mr. Waulass testified that oa July 9, 1971, ha prepared a check, addressed to the Wtlllam-lo- a. deposited It la tha mail. Tha Williamsons say thay savor received that check. Oa August 1, 1971, tha Williamsons want ta Mr. Olson aad had him a prspara notice af accalsralioe aad damaad far the satire balance. Indicating that tha July payment had never baaa racelvad. Tha Wanlasaas received tha aotlss an August 7, 1971. Mr. Waalase Immediately attempted to telophase Mr. Wllliamsaa, but was unsuccessful. Ha than stopped paymaat oa tha July ckaek ,Bd made eat a new check for tha July payment. Ha seat this with a latter of asp la nation to Mr. Williamson, la another envelope, postmarked August 7, 197, Mr. Waulass seat a chock datad August I, 1971, for the August payment. that tha monthly paymente oa a contract had been made for ovar two years; that soma af them had baaa mada 'total aad that aa prior occasions two phoaa calls aad a latter had taken cars of tha difficulties when payment was net mada aa tha dua data. Tha plaintiff without prior warning gave notice saying. "1 hara by notify you of. the termination of your contract." la refusing ta affirm aa award of attorneys' fees, tha court commented that! "Thors was no evidence to indicate that tha parties, by phoaa or personal contact, mada aay attempt ta iron out what appears to have baaa relatively miner problems, " aad farther that tha defendant by accepting lata paymaata . . could net require strict performance without having given tha buyers fair warning to that affect." . Counter ta thia, the plaintiffs argua that that doctrine aad tha cases supporting It apply only to forfeitures under real estate contracts; aad that that doctrine Is sue of equity which has no application to this action at tow to collect aa a promissory aota. It la true that tha doctrine is spoken of as oaa of equity and good conscience aad that It has baaa applied ta raal estate contracts. Tba rutoe of equity arose as a means of avoiding or ameliorating tha rigidities aad harshness ef soma of tha rules and ramadias of tow. It Is also Is ba observed feat tha differences between tow and equity ara not aa distinct as thay warn la farmer times. The lines between them have become blurred aad thay have bacoma far tha moat part blended together in what wa refer to generally as equity cud justice. Our Ceastitution, Art. Ill, Sac. 19, provides: "There shall be but oas farm of civil action, and tow and equity may ba administered la fee same action." Consistent wife tha foregoing, equitable claims or dsfensss may ba assarted and triad along with or against legal claims or defenses in the same action; and equitable principles may ba applied in aa action at tow.7 Va can saa an reason why tha doctrine wa have Just spoken of aa being rooted la equity sad good conscience should have any affinity far. or limitation la application to. any particular type of conduct or controversy. The principles of equity aad juaticu ara universal; thay apply wherever appropriate aad necessary to anfarca rights ar to prevent oppression and Injustice. Thara is another significant matter to be considered in analysing tha problem presented la this casa. Tha note in question is negotiable in farm and Is the refor a subject to the provisions of our Uniform Commercial Coda. The subject af accalaratiaa of payment is dealt with In Section brief Tha buyers' own chock shows that tha chock, which was supposed ta have baaa mailed far tha July 1, 1971, payment, was not datad until July 9, 1971, which would ba at laast nine days lata wbaa made, by tha evidence most favorable to tha buyers. Tha Auguat payment was la an envelope post-mark- ed August T, 1973. Every paymaat dua. Including those up to the data af tha trial, had baaa taadarad ta tha plaintiffs, or to their attorney, which tenders were rafusad, Naas of tha checks after tha oaa for June, 1973, had baaa cashed. This feet itself is something of a commentary oa tha plaintiffs' asssrtioa as to hew badly thay aaadad thasa paymaata aaactly an tha dua data; and even more so whan this to considered la conjunction with the fact that tha $91, 000 had baaa turned aver to the plaintiffs as payment an thalr farm. Nevertheless, tha plaintiffs rafusad tha tender and caused this auit ta ba filed. Tha clausa which allows far accalaratiaa la casa af default. If strictly enforced, is a severs covenant, tha invocation of which has similarity to athar forfeitures. Tha Imposition of such savara conditions Is not favored la the tow; and ana who seeks to impose them must not, either by acts ar omission, permit another ta assume that tha covaaant will not ba strictly enforced, than "crack down" aa tha obligor by rigidly insisting oa anforcemaai, without giving soma reasenabla notice and opportunity to comply. This Is a doctrine of equity which is firmly astablishad la our tow by aumarous decisions. A foundational casa 1s Christy v. Guild" to tha affect that when one has accepted overdue payments so that tha payor has reasonably railed on such course of conduct and baaa tod ta believe that tha payee will totorata a failure of strict performance, the totter cannot abruptly change course aad insist upon strict adherence to tha covenant imposed and anfarca a harsh .forfeiture. Tha moat Kilt, racaat pronouncement af this court on this subject is la Paul v. facta ara closely similar is those hara. It there appeared j soma ef whose Sac Jensen v. Nielsen, 26 Utah 2d 96, 461 P. 2d 623, and authorities therein" citsd. 2. 101 Utah 311, 111 P. 2d 401. 5. See Jacabsaa v. Swan, 1 Utah 2d 59,71 P. 2d 294; aad Parkins v. Spencer, 121 Utah 466,241 P. 2d 446, and cases tha rain citsd. 4. iUtahl. Decamber, 1971. P. 2d .2- - No. 14076 ing your payments. tha plaintiffs' extensive property, fears can ba little doubt that tha aota would ba paid, principal and latarast. We revert ta a consideration of the facts in tha light of tha principles discussed herein. Although the plaintiffs state that they had "never acquiesced in or accepted tha lata payments, " that does not appear to be wholly accurate. The fact that thay did accept tots payments Is without question. Whether they in feet acqulasced la doing so may be a matter far someone elsa to judge. In any event they followed the pattern of the cases referred to wharalu a creditor allows a debtor to miss or make lata payments. Thay constituted Attorney Olson as thair attorney and agent to write tha totter of February 20th quoted above. Inasmuch as they claim tha advantages of that letter, thay must also accept Its disadvantages. Dua both to what it said, and its general toner, it could ba regarded, not as any demand ar ultimatum, but as a friendly and gentle admonition that "it would ba nice if tha payments could ba mada aa time. ..." A no tha r significant fact is that tha totter did not make a forthright declaration that tha plaintiffs would insist strictly upon tha payments being mada aa tba due data ar tha whole debt would ba accelerated. It placed a condition upon such a declaration: that they could do so "if they are aggravated. " Tha question arises aa to how the defendants would know that condition cams about unless so mao ns so advised them. It is generally true that If there is a condition to ba fulfilled, of which ona party would be awara and tha athar would not. It to regarded as fair and proper that tha ona who knows should ba obliged to notify foa othar parly affected thereby, and give him a reasonable opportunity to react tha rote, la applying principles of equity and justice to tha facts la this case we are unable ta sea why tha acceptance of tha payments dua as tendered by tha defend ants would have rasultad in any injustice to the plaintiffs. The same to true under our conception of tha proper disposition of this case. They ara still antitlad to give a proper notice (which purpose this suit certainly accomplishes) that thay will insist upon tha strict compliance with terms of tha note; thay ara antitlad ta collact tha payments as specified therein, together wife tha latarast. Except for whatever burdens thay themselves created by refusal of the tender of all of tha money than dua them, and thair precipitate insistence upon bringing this lawsuit, they are entitled to receive fall acquittance of what thalr contract provided for. (All emphasis haraia added. ) 1, U. C. A. 1951: 6. Option to accelerate at will. A term providing that one party may accelerate payment "at will" or "when he damns himself insecure" or in worde of similar Import shall ba construed to mean feat he shall have power to do so only if he in rood faith believes that the nroenect of payment or performance is impaired. The burden of establishing lack of good faith is on tha party against whom tha power has been esarcisad. On tha basis of what wa have said herein. It Is ment should ba reversed. Costs to defendants. the Judg- WE CONCUR: F. Henri Haariod, Chief Justice It will be noted from tha emphasised language that this statute is to harmony with fee principles of equity we have discussed shove. 7 It seems to recognise that sccele ration is s harsh remedy which should be allowed only if ha has some reasonable justification for doing so, such as a good faith belief that fee prospect of payment is Impaired. There was no such showing mada la this csss. From the fact that the plaintiffs had a second mortgage on this 5. This is implemented by Rule 2, U. R. C. P. 6. See Columbia Trust Co. v. Anglum, 61 Utah 151, 225 P. 1069. 7. Marlows lav. Carp. v. Red mall, 26 Utah 2d 124, 465 P. 2d 1402. Minas v. Toledo Mining Co., 24 Utah 2d 151, 471 P.2d 6. E.g., 667; Calhoua v. Universal Credit Co., 106 Utah 166, 146 P.2d 264; and sea Wlngela, lac. v. Bitters, 26 Utah 2d 211, 500 P. 2d 1007, and cases cited therein. U.C.A. 1951, provides that, unless displaced by tha 9. Sec. previsions af tha Cods, tha principles of law and equity shall supplement it. ear decision that A. H. Ellstt, Justice R. L. Tuckstt, Justice ' Richard J. Madghan, Justice 70A-I-I0- 1, ' No. 14076 -- 1- Mt. Bell Says 5 The Utah Public Service Commission formally authorized the charging plan in an order to Mountain Bell this week. It included a five-caallowance per line each month before any charges would be applied. "The objective of the charging ll -- 4- Will Pay for Directory Assistance Calls Mountain Bell has said studies allowshow that with a five-ca- ll of five its ance, only percent customers will be charged for Directory Assistance in Utah when the plan goes in to effect in July of this year. No. 14076 plan has always been to reduce the number of needless calls for Directory Assistance, and to have those using the service frequently pay more of the cost to provide it. It was never intended to increase the phone bills of the majority of our customers, said Ken Hill, Mountain Bell Public Relations Manager. physically handicapped persons may be exempted from the plan. Hill said Mountain Bell will be contacting physicians and social agencies in the near future to enlist their help in identifying those who qualify. Their exemption status will be in effect prior to the July 1 date, he said. Other information will be providOne of the major provisions of the Order is that the telephone ed regarding how customers may company formulate a program to avoid or minimize charges, the inform customers about the charg- availability of directories, and ing plan including how visually and supplements. |