*1 225 1975. On if the statute has run on a cause of gery performed May was action, dead, an re year, of that Moore filed it is it cannot be November 25th so application compensation additional for by any statutory for vived such extension. But partial disability. alive, On permanent increased if of action the new the cause is still 1977, 19, March made a Commission can extend the time in which it enactment finding permanent partial increased dis- may brought.3 happened be That is what ability percent, to 20 made an additional origi applicant’s in this case. Inasmuch as weeks, with per award of week for 62.4 1968, $62 injury оccurred in nal paid. credit amounts given previously the six- assert it was alive and well under year when it in 1973 statute was amended injury, At of the original the time eight years; the time to and after extend 1968, was six-year a statute limitations years, eight he from amendment U.C.A., 35-1-66, in effect. is, original injury, that the date of his provided: then 1976, supрlemental in which file his disabil- injury partial Where the causes Therefore, correctly claim. Commission work, ity employee receive shall applica filing instant ruled that his disability period such for a during compensation on November tion for further (6) the date years six to exceed 1975, 25, within extended time. compensation injury, weekly . . Affirmed. [Formula.] 1973, applicant’s cause of
In thus while to defendant Moore. Costs alive, action was still section amended thus: MAUGHAN, ELLETT, J., WIL- C. JJ., HALL, injury disabil- concur. partial Where the causes KINS receive, work,
ity employee shall disability such for not to exceed during period not to excеed weeks over injury,
eight years from date of emphasis . . .
compensation [All
added.] be- here confronted arises problem Mundy Bull and June Russ BULLOCK claim was supplemental cause applicant’s ock, Appellants, Plaintiffs and six-year limita- not filed the former within v. tion, filed within the amended but it was et COMPANY BAILEY AUCTION JOE argument of eight-year limitation. The al., Respondents. Defendants and is that 1973 amend- plaintiff Del Monte extending the statute of limitations CO., Third-Par BAILEY AUCTION JOE to be retro- eight was not intended years, Respondent, ty Plaintiff and spective apply thus to to claims v. amendment, arose but was prior to COMPANY, Third- SURETY WESTERN only prospectively effective intended to be Party Appellant. Defendant and only to that arose apply and thus to claims to that amendment. No. 14845. general and well-established Supreme Court of Utah. principle prescribing law is that statutes 22, May 1978. remedies;2 and that limitations relate power has to increase legislature brought. may time be in which an action it should be observed that connеction Fork, Spanish Donaldson, 99 Utah Corp. State Tax Comm. U.S. 3. Chase Securities 816, 177, 575, cited in 51 100 P.2d 131 A.L.R. cited 65 S.Ct. L.Ed. Am.Jur.2d, Actions, Am.Jur.2d, Actions, Sec. Limitations of Limitations of Sec. *2 Hughes
Frank A. Allen and Michael D. Allen, Behle, Thompson, Hughes & St. George, and appellants. Foremaster, Phillip L. George, St. for de- and respondents. fendants HALL, Justice: Plaintiffs Russ Bullock and June Mundy (Bullock) proceed- initiated these ings specific seeking performance to obtain drilling contract sale well Joe Bailey restrain defendant (Bailey) Auction Company reclaiming equipment. Bailey said counterclaimed wrongful seeking damages for issuance of a third-party restraining order filed a complaint Surety against Compa- Western ny (Western) surety. court order, dissolved dismissed the complaint damages and awarded on the counterclaim, en- judgment and from the appeal. tered Western Bullock and gov- the transaction was thereafter consigned to equiрment involved was Ventura, provisions at Cali- applicable for sale at auction erned fornia, 1972. On Code.1 on December Uniform Commercial with Bullock met morning of the auction determined, specifi- judge The trial an auction official Parkes findings, set forth in his cally *3 of purpose for the representative Bailey, of precedent to the consum- was a condition required as a bidder. Shewmake qualifying failed of the sale and that Bullock mation he would financing of before verification conditions of the to meet the terms and subsequently, af- to bid and permit bullock further by failing pay. to He auсtion sale commenced, he received bidding ter had the that Bullock took determined by telephone. necessary the verification that his permission, without equipment the Thereafter, actual bid- did the Shewmake was without equipment of the retention on the for Bullock and was successful ding possеssion, ownership right or basis of operable not in equipment. desired It was consummated, being proper no sale site left on the auction condition so was to the pursuant retention and that said involved by which was controlled others He there- restraining improper. order was the auction. awаrding damages judgment upon entered permission Bailey denies that Bullock restraining wrongful the the issuance of from the auction to remove the commission, and costs order, loss of auction site, event, performed any Bullock but equipment. resale of the removed the repairs extensive foregoing Bullock maintains from Shew- protest without ment to Utah con- with his wholly consistent findings are of the charge parties make or the other formed was that a contract of sale tention aware of Bullock’s site, they were although of his point and the focal by activities. to that, having found a contract is appeal delayed, and financing was Bullock’s exist, erred in court thereafter the trial moved to being while the of sales in accord- apply the law failing to a check Utah, gave Bullock Shewmake Code2 with the Uniform Commercial ance following language on bore any award of precluded have which would presented to be to reverse side: “Not Bailey. damages in favor financing adequate bank for collection judge, trial couched findings of the days later completed.” is A few of “consummation as are in terms the check to no attempted negotiate consummated,” do in “sale the sale” and made it known avail. He thereafter argu- to Bullock’s lend some credence fact he intended to reclaim looking by simply out ment. This is borne obtained sought Bullock of terminolo- of his choice the definitions by dissolved subsequently which was order as the com- defined gy. “Consummation” payment had when it found that the court applica- common and its thing,3 of a pletion failed to when Bullock not been made and sales, marriages. is to contracts tion thereon. hearing scheduled appear as distin- complete, is to “To consummate” at trial Bailey’s contention It was order to con- initiating.4 guished from precedent a condition payment was “something” something, summate made, hence sale, was not existence. already be in course must of sale, pass. not and title did there was no use of the improvident judge’s hand, contended that On the other referred tо hereinabove language gave equivocal by the auctioneer acceptance of his bid he quandary signify well may very executory contract of sale rise to an Dictionary, Edi- 70A-2-101, Fourth U.C.A., 1953, seq. Revised Black’s Law 3. et tion, 1968. Ibid. Ibid. faced, Q. we but when look the whole of his Isn’t it the responsibility buyer findings, judgment, conсlusions and we are once has accepted? the sale been convinced he did other than to A. buyer your When the informa- —for determine no contract of sale ever tion, accepted when a is accepted. bid came he into existence. Had in fact found says an by buy- When auctioneer sold made, a sale was find- er, it, responsible he is its well-be- ings possession, damages, etc. ing, keeping from then and thereon. totally support would have been without Q. you Haven’t testified the pur- and would have made no sense. chase the articles The question thus for our de- accomplished pursuant to the terms of termination is whether or not there is credi- the auction? ble evidence record Except A. it wasn’t for. *4 trial court’s finding that contract of sale Q. day subsequent, you did tell So was not made. If is no such evidence buyer plaintiffs the of in this cause action present, the judgment must be reversed.5 protect that it to responsibility was their It is to at be noted the outset that equipment? the of questions may conflict laws be inherent They A. day were told the of that there case, however, in the facts of this no such [Emphasis the sale. trial, added.] issue was at hence we will not it time.6 Con address here for the first In regard to the of pos- matter Bullock’s we to sequently, are constrained view the equipment, Bailey’s foregoing session of the appeal relative merits of this in accordance testimony placed responsibility the with applicable only. Utah law purchase upon buyer, dеspite the and
A careful of evi examination the equipment denial Bullock removed the dence at produced reveals that the specific permission, without his is Bailey clearly facts contrary a sale the to by nonetheless bound acts his agents of findings of the trial court. site, in charge sрecifically the sale and permitted those of Parkes who with, parties To begin stipulated perform major repairs Bullock to costly at the outset equipment of the trial equipment remove the to Utah. This evi- was “struck off” at to auction Bullock. dence was uncontroverted. case, bеing the sale by Such auction was complete as a matter law at the fall of Bailey’s The fact agent, Parkes the hammer.7 Shewmake, accepted pay- Bullock’s check in executory fact that an contract of after the been equipment had taken by sale is evi- was formed also into possession by to removed by testimony Bailey dent on elicited Utah, compelling is also evidence of a sale cross-examination follows: delivery.
Q. it equipment] Could have been [the respect propriety lost to the of the to the sale when it was With order, being restraining although being right these items were Bullock’s —when stored under paid guard Bailey of Joe possession challenged, is he in came fact Auction? into Bailey peacefully, been, A. threatening self-help It could have but is it still the resort to order to responsibility buyer, of the equipment auction reclaim the than seek his rаther procedure all country. legal over the remedy payment through appro- Hathaway Co., 7.U.C.A., 1953, 70A-2-328(2) provides v. United Tintic Mines 42 a sale (1913). by Utah 132 complete P.2d 388 auction is so when the auctioneer announces the fall of the hammer or manner; also, Utah, customary Fields, other 751 Hanover Ltd. v. P.2d Seе State 568 Clinger, (1977); Wagner Olsen, (1951). 72 Idaho 2d Utah P.2d 702 seen, any purchases announced Thus priate legal proceedings. finding, precedent a condition to the con- contrary to the trial court’s made was sale; right as possessory have a valid any Bullock did summation of protection entitled to the buyеr and was (2) failed to meet that plaintiffs that the order. instruct- condition of the auction and were damages the matter of regard In ed that no sale had been consummated resale, had no incidental to purchase price delivery of pursue remedy such a because full; they had bid was madе,8 he had been instructed (3) were interest, had he any security retained nor they not remove the could self-help. any right repossess by means did so place storage, but either to make His obvious were remedies the defendant. permission without breach or sue for demand for reclamation prоposition opinion The main states the event, he has now that of contract. complete at “the that a sale at auction is equip reclaiming been successful hammer,” apparently placing fall of the ment, all reme he is excluded from other U.C.A.1953, 70A- on some reliance dies; hence, damages was in the award of that section as mandat- 2-328. I do not see error. magic is no ing any such conclusion. There and Western. Reversed. Costs to Bullock else of a hammer.” Whatever “fall *5 may do Uniform Commercial Code WILKINS, JJ., concur. MAUGHAN and law, repeal it the fundamental our does not CROCKETT, (dissenting): Justice times, in concept, since ancient honored following I reasons. dissent there bind to a contract order to reversing the trial court’s determina- agree- their minds meeting must be a made, it seems to tion that no sale has been undoubtedly It is true as ment thereon.4 departs from fun- opinion me that the mаin ap- cited, under indicated in the cases review. important damental rules of where the auction- propriate circumstances are entitled findings of the trial court offers, accepts, the fall eer and the bidder We a of correctness.1 presumption agree- such an may indicate hammer aspects those that it believed should assume But the sale be consummated. ment and findings; of the evidence which circumstances obviously are numerous there a sale had been and its refusal to find that result, includ- not be the where that would unless the completed should be sustained misinterpreted a auctioneer ing where the compel such a evidence was sufficient hammer; bid, banged a gesture as finding.3 totally irre- proves to be or where bidder sponsible. of fact made the trial findings Pivotal evidence,
court, support in the which find justifiably find and The trial court could are: previous- that therе was a conclude as did would (1)That auctioning ly announced condition: in connection with made, and be no question the defendant sale until Hutchinson, Utah, U.C.A., 1953, Robertson v. 70A-2-703 and 710 8. See (1977). before sets forth varied remedies of seller on or delivery; similarly interpreted v. Stumbo Co., 20, 444 P.2d Co., Paul B. Hult Lumber 251 Or. First Securi- Trust etc. v. 3. Walker Bank & (1968). (1959). ty Cоrp., 9 Utah 2d 341 P.2d U.C.A., 1953, 70A-2-702(2). ed., Contracts, 3rd on 4. See Williston suggests assent” is more that “mutual also U.C.A., 1953, 70A-2-702(3). accurate, citing cases. numerous Lloyd, 2d 28 Utah 1. C. G. Horman Co. P.2d 124 ELLETT, J., defendant’s indication of accept- C. concurs the views ex- ance of the plaintiff’s bid constituted but an pressed dissenting opinion in the
executory required paymеnt contract which CROCKETT,J. purchase price before the sale was complete.5 Consequently to, neither title of, the right possession
nor passed plaintiff until he made such
payment.6
Regarding
equipment, opinion the main states that the agent,
defendant’s Parkes per- perform major
mitted the plaintiff re-
pairs on and move it to
Utah. It significant that Mr. Shewmake had been authorized plaintiff to act for the CASUALTY, LIFE AETNA & a Connect- transaction, Bullock in this and also for the Corporation, icut Plaintiff However, defendant Bailey. there is no Respondent, evidence latter authorized Shew- permit plaintiff make to to make the re- pairs and equipment. remove the The im- UNITED PACIFIC RELIANCE INSUR- portant and what should be controlling COMPANIES, Washington ANCE proposition is the finding trial court’s Corporation, Appellant. Defendant and wеre they instructed could not remove until it No. 15306. disregarded and that Supreme Court of Utah. instruction. Finally, it urged plaintiffs’ on behalf May 23, 1978. acceptance Shewmake’s check *6 plaintiffs, from the after the removed, constitutes substantial evi-
dence that there had been sale and deliv-
ery. In support of the trial court’s refusal
to find that sale, had been such
the fact is check was inscribed on
the back:
“Not to be to the bank for
collection adequate financing is com-
pleted.”
The check honored when the de- attempted
fendant to cash it a few days
later financing” because no “adequate
been obtained.
It is my opinion that the trial court’s
refusal to presentation find of that
valueless check fulfilled condition of
payment and resulted in a sale should be
sustained.
I would affirm judgment. Am.Jur.2d, Auctioneers, See Yellowstone Livestock Commission v. 6. 7 Auctions and Sec- Dupuis, 133 Mont. tion 48.