*1
inquiry as reasonable
investigation and
such
asked excepted duly They also ing this element. refusal, instruct “to the court’s must defendants it must find misrepre upon the relied
reasonably have any.” if plaintiff,
sentations to the adequately called
matter was thus the defend Counsel attention.
court’s request both also aware
ants con the court exception but assured
and the instructions, “We think saying
cerning very have no good and are instructions to sub the failure
exceptions.” Because of question essen fact jury this
mit fraud, necessary it is to re establish
tial the case remand judgment and
verse the order. Costs Such a new trial. appellants.
McDonough, j., and henriod c. WADE, JJ., concur. J., participate does not
WORTHEN,
herein.
peals contending that the statute of limita- recovery tions above referred bars all judgment but entered $100 the trial court. testified that was em-
ployed by in 1921 and had attorney continuously been its time; that at that time it was agreed liberally paid he would be for his services respondent corporation when the had mon- ey him, sufficient which to but that he would reimbursed from time Neilsen, Hansen, Elias Salt Reid W. expenses. Briefly time stated, appellant. City, for Lake rendered, claimed he had inter Bird, Bushnell, Dan Jr., S. L. Richard alia, following respond- services to the respondent. City, for Lake Salt stock; kept ent: made assessments on its the minutes of meetings; the directors’ *3 WOLFE, Chief Justice. leases; litigation; drafted conducted made below, trips about one hundred to the plaintiff mine which by appellant, the Action in American Fork Canyon located ser- in legal and other $10,000 to recover for County in pur- Utah this state for respondent various the he rendered which vices poses, below, furnishing transportation; his own during a corporation, defendant trips Provo, many to county made the extending from 1921 to seat thirty period year County, of Utah to check the the action title respondent records resisted 1951. The purposes; and for other appellant prospec- secured paid the that it had on the lessees, tive $1,000, conducted them through of except the sum the for all his services negotiated them; mine by leases with the four- barred action was and that his loans secured from the to R.F.C. on actions for one of limitations year of lessees; respondent’s 78-12-25, the wrote contract, Utah about 600 Sec. on recover corporation; letters on behalf the of judgment a From did 1953. Annotated Code in the patents favor of jury obtaining mine; a verdict work in entered on prosecutes $1,500, this kept general he appellant manager its for who in lived contending the court apprised below did appeal in all California matters connected jury correctly operation the and that the instruct addition, the of the mine. In not inadequate appellant so entitle him the was claimed that his verdict law office in City respondent cross-ap- the trial. The Salt Lake served as office of the new respondent corporation Turning and that Utah first to a consideration the of stationery, stamps, telephone respondent’s cross-appeal, furnished it it contends that appellant stenographic He testified that can service. recover for services period 25, 1948, during thirty year he had re- rendered on or after which March respondent from fees for jury reasonably ceived services the found to be only $350, 10,000 $100, plus himself shares worth he did not commence his given 25, 1952, stock which were action until March and that re- director, covery prior to him that he could serve as a so services rendered to that 20,000 and an by providing additional shares which date is barred Sec. 78-12-25 given him in about knowledge four-year for a without limitation on actions to by meeting the board at a recover on of directors contract. The claims Angeles, running held in Los limita- of the statute of California, by he received no notice. Estimates as to the tions was acknowledgment tolled an nothing obligation by respondent’s ranged value of the stock from made president per one cent on March 1948. share. By special verdict the found 78-12-44, U.C.A.1953, provides: Section unpaid the reasonable all the non- value of any contract, “In case founded on otherwise, services, gratuitous legal and any part when principal or in- respond- by rendered for the terest paid, shall have been or ac- an period during the ent amounted to knowledgment existing liability, of an 31, 1947; August, from to October claim, promise debt any or or 1, 1947, during period from Nov. $300 same, made, shall have been 24, 1948; to March from March $100 may brought period action within the 24, 1952, 25, 1948, ap- March when the prescribed pay- for the same after such action; pellant or a total commenced this ment, acknowledgment promise; or period. thirty year $1,500 during the but such acknowledgment promise found was further writing, signed by must be in party that the individual intention of charged thereby. to be When right rendered items of the account by provisions of action is barred considered inde- should be statute, it shall be unavailable pendently continuation and not as a of a *4 a either as cause of or action series, payment was but that to be related of defense.” happening contingency, a upon the made September contingency occurred on It will be noted that the above respondent
11, at which time the made 1947 disjunctive: statute is worded in the “an appellant acknowledgment existing from the of an liability for a statement demand pay debt, liability claim, it owed him. or what or as to 108 debt; tq reference, added.) a of an
promise pay (Italics or a discussion old the same.” states, it must many recognition an acknowl amount to a clear Unlike statutes liability existing. pay presently not both the claim promise a are and edgment and. 498, Bauer, In Gilman, 75 Utah re Son F.2d necessary. (D.C.), Weir & Co. 57 v. 936; 1 on Contracts 294.” 286 § P. Williston Park v. pointed 167. in O’Donnell out case, Turning now to the instant 1193, 578, 1192, our that er, 48 160 P. Utah Harry we think a written one letter Kansas taken and statute was from Holden, corpo president of the state in Elder Supreme of that v. Court 1948, ration, appellant on March 604, Am.Rep. stated Dyer, 40 Kan. a meets the above test and constitutes following regards to what constitutes existing “acknowledgment sufficient of an acknowledgment existing of an a sufficient liability, claim,” interrupt debt or liability under statute: running of the statute limitations particular phrase form or
“‘No set running anew that That start it date. from anything that required; is language letter reads follows: party making will indicate “Mr. Clarence M. Beck that he is acknowledgment admits Bldg. “416 Felt claim, that he is on the still still liable City, “Salt Lake Utah satisfaction, that he is its bound for “Dear Clarence pay- liquidation and held its still nearly years two “It has been ment, to revive the debt or is sufficient trying your get have I been bill for necessity that claim; there is no on Dutchman Coalition promise also be should there ” I Mines Co. this have been unable to same, express implied.’ either do, your many promises to submit it Shurtliff, Co. v. Lake Transfer In Salt been have never fulfilled. 733, 736, 488, 489, P.2d Mr. 83 Utah feel “The Directors here that we Folland, court, speaking for this Justice a small should declare dividend but cases announce later Kansas noted that to do are reluctant so till all bill’s are distinct, direct, “nothing short of (cid:127)rule that paid. of a .unqualified, and intentional admission party subsisting debt on which a present, gone “We have over the work that be sufficient to take the obli- liable will you money done and the have we have it run- start gation you out paid togeather with the [sic] acknowl- He stated “The ning anew.” Thirty Thousand shares of you stock necessary to start the statute edgment feel received enclosed hint, dollars, more must be than check [running] anew for One thousand is a
109
pay-
quarrel
compensate
;
the
no
very
with the holding
liberal one
those cases
of
your
compromise
this date.
for
services to
offers to
ment
can be and are often
worded
so
to admit
acknowledg-
of no
granted
that
will take
for
“We
ment
existing liability
of an
of
cashing
this check
of
constitutes
the
and/or
promise
unconditional
pay
the same.
acceptance
payment
your
full
Each case must be
largely
determined
on
rendered.”
services
all
its own
think
facts. We
Holden’s letter
“Sincerely
acknowledgment
contains an
of an exist-
“Harry
Holden
W.
/s/
liability
ing
independently of the offer
“President
made in
paragraph
the third
to settle the
“Dutchman
Co.”
Coalition Mines
$1,000.
claim for
We thus conclude that
clear
The above letter contains a
the letter
constituted
sufficient acknowl-
acknowledgment
and definite
that the re edgment
toll the statute
of limitations
spondent presently
appellant for
owes the
anew,
it running
start
and that
the
ap
his services. The letter refers to the
appellant having commenced his action
pellant’s
claim as bill
the directors
years
within four
after
the letter was
pay presently
desired to
clear
in order to
by
written was not barred
the statute of
way
payment
for the
of a small dividend.
limitations from recovering for all his
express
It
no difference that Holden
makes
unpaid
respondent.
rendered
services
to the
$1,000
ed
thought
that he
was all that was
Turning now to the contentions raised
owing
due
statute
satisfied
appellant,
by the
he asserts that
inas-
by
acknowledgment
a “claim” and
much as there
been
had
an acknowledg-
require
not
amount of the
does
by
ment
claim the
of his
within
claim acknowledged,
be
or that
claim
prior
years
four
commencement
liquidated.
be
Williston on Contracts
§
action,
requir-
lower court erred in
188;
214;
Contracts
1 Corbin on
Re
§
ing
per
special
to find
verdict
statement
Contracts
comment b.
§
certain facts which could have no bearing,
promise
any
There was no offer or
on the case unless the statute of limitations
thing over
but as
been
has
heretofore
part
appellant’s
barred all
aor
of the
action.
pointed out,
promise
necessary
such
is not
complains
Specifically, he
Respondent
under our statute.
claims that
required
was
to find whether the last work
merely
Holden’s letter was
an offer to
performed by
completed
was
compromise a debt and refers us to cases
25, 1948;
after
before or
March
whether
collated at
sidered re- of a a continuation tended them to be appellant’s part law that of the claim no at the series, payment due lated was barred of limitations. series, respond- end whether the of the pure conjecture part would on our It ent terminated the superfluous hold the submission *6 only the Appellant urges that in 1947. way ap- questions any prejudiced in the (1) what was the case were issues in the pellant’s jury He concedes the case. appellant’s services the reasonable value of main, questions, resolved in the those favor- thirty year period served he during the nothing to find in able We the writ- him. had respondent, (2) what amount and the explanation ten in the oral instructions or therefor; appellant respondent paid the the given of the statute of limitations questions of fact asked the other that.the jury susceptible which is of intimation only served to confuse jury stated above appellant might that the be at for not fault ap- intimation the them and cast the bringing no his action sooner. There was bringing pellant fault for not might be at need, however, explanation for the court’s sooner, leading jury the award his action jury the of statute limitations the of compensation to only fraction of the him since it of law which did not was matter supports He his which entitled. he was them, directly by concern the court’s by pointing out that after the argument say nothing own that he admission could deliberate, they returned jury had retired explanation them the in explanation requested an into court determining them in limitations could aid limitations, which the statute of court the fact questions the several submitted to orally. made them. appellant The next asserts that the lower agree appellant the in court its discretion denying abused jury in requiring court erred
the trial motion trial. The for a new motion was questions of fact above enu to resolve upon grounds including made six they were not in the merated issues that the of the verdict amount was inade- are convinced But we that he was case. quate, have been appearing to rendered way prejudiced thereby. It not in passion preju- under the influence of superfluous act which neither added was a jury from answer nor detracted He argues jury totally dice. that the ig- question expert testimony submitted to them: only vital nored adduced him reasonable value of the “what was which he services rendered to the unpaid services?” appellant’s jury respondent thirty The year over the period question, $1,500, $12,000 reasonably answered that worth the were more, or gave $1,500 him judgment trial court for that and that which the awarded him, coupled which he treasury him; with the ad- $350 shares of stock were issued to receiving respondent mitted from the as that respondent as a director in the himself, gives for a small fees him performed non-legal certain work for fraction of the reasonable value of his contemplated was never he would be services. paid; ap- that certain services for which pellant sought recovery rendered were not Trial courts have wide latitude respondent for the but other granting in denying motions for new and that the had never notified Considering trials. the evidence which the respondent of his intention to look to respondent adduced, which evidence the payment. appellant’s it for expert say was entitled to we believe, cannot witnesses who testified that his services as a matter of law that the court below reasonably were worth or more denying abused its discretion the motion. opinions based their solely upon ap- appellant’s expert One witnesses pellant’s testimony. direct They did not who testified that all of the services which consider formulating opinions their rendered over respondent’s evidence that certain services thirty year period reasonably which the sought recovery $12,000, worth further testified in breaking performed were never or were never in- appellant’s figure that the down the *7 compensable. tended to be handling ej in an ectment suit and patenting judge The trial stated in the record that mining reasonably four were worth claims thought he inadequate, verdict was $6,000, and and that his at least services in appellant argues that he refused minority to dissuading a stockholder from grant a trial new because he was labor- bringing against a stockholders’ suit ing misconception under a of the corporation law as to reasonably were worth at least grant when upon he could a new trial $2,000. respondent’s president Yet testified inadequate damages. paid had been in full cannot ejectment in the suit and review the trial court’s thinking his services on the and that he not He refused to patenting grant trial, the claims had matter. the new his reasons regardless requested doing, dissuade the so to say cannot under the we evidence that commencing an he minority stockholder from his discretion. abused introduced that Evidence was also action. attempt actually did not appellant complains Lastly, Respond suit. off the stockholders’ stave refusal to submit a trial court’s certain testimony that adduced
ent further jury. Appel requested instruction to paid in full for his appellant had been 20,000 objection make an having failed to lant May, when up to services “a refusal, matter. where number of suits were insti- review that we will not n Rule Utah not tried” and “but tuted com- Procedure. of Civil Rules paratively occupied court,” little time was in Each judgment below is affirmed. appears “no difficult where trial to have party to bear his own costs. occurred, and the results to the litigation were moderate.” But McDonough, crockett and this court were not writer and cannot WADE, JJ., concur. jury case, in pretend be the this and our feelings personal such matter can- HENRIOD, (concurring). not exceed the four corners record Justice made. concur, only jury found I because the which, light in a facts viewed did on defendant, reasonably
most favorable to did justify the verdict. If the
could
plaintiff,
result could
such a
not believe
reputation in the No. 7970. have believed the he would juror, been a Supreme Court Utah. would have concluded plaintiff hence April 29, 1954. testimony, that, the amount based on his month, per awarded, amounting to about $5 ridiculous, presented and would have
was opinion as to what contrast striking today are worth com-
lawyer’s 1897,1 where we held
pared those of attorneys fee for whose
reasonable eight over about
“employment extended
months, of their time was taken and much *8 in the months investi- first two
during made, they assistance of
gations receivers”, and the accountant expert Lake, Geyser Utah P. 152. Min. Co. v. Bank Salt 1.