*1 intent be consistent he parties Morrisons that the approximately profit entitled 15% re- price per cinders ton for received
moved, that the lessors could mean price pay the same
obligated themselves to required third the Morrisons
for cinders as upon re- those
parties pay for cinders interpret premises. To
moval otherwise, and as contend- provisions
these Block Com- by appellant Buehner
ed deprive Morrisons of
pany, would approximately
right to retain 15% re-
price per received them ton
moval and cinders. sale respondents.
Affirmed. Costs McDonough, callis-
henriod, CROCKETT, JJ., concur.
TER and
v. Noble, Ann NOBLE
Brack Howard C. Appellants. Defendants
No. 9478.
Supreme of Utah. Court
Feb.
*2
testify
judge,
Cotro-Manes,
permitted
Lake
&
Salt
Cotro-Manes
counsel,
agreement
directed
she
appellants.
City, for
psychiatric
re-
given a
examination. The
Bean, Layton,
respondent.
for
Bean &
port
testify
indicated that she could
con-
examiner had reservations as to the
CROCKETT, Justice.
reposed
fidence
Mr. and Mrs.
H.
Defendants
Brack
No-
that it
be received with
caution.
appeal
judgment nullifying
two
ble
procure
surrounding
Essential facts
real
obtained from the
deeds to
ment of the deeds
to are these:
referred
fraud;
plaintiff:
ground
one on the
Hattie DeVas owned about
30 acres
forgery;
the other
and also from
.
up
land
in the foothills
It had been of
damages.
an award
during
little value until the urban incursion
II,
following
World War
bur
having
The trial court
found for
geoned
population
County.
Davis
plaintiff,
is both our prerogative
19S2,
September of
defendant
H.
Brack
duty
every
review
evidence and
Noble talked to
possibility
her about the
fairly
and reason
inference
purchasing some of her
land and also
*3
ably
light
therefrom in the
drawn
most
matters,
discussed some other
including
plaintiff,
to the
which we do in
favorable
survey;
of a
desirability
the
and that run
of the facts.1
our treatment
brought
should be
ning water
to
plain
the
elderly
lady
place.
DeVas is an
Mr. Noble in
Plaintiff
tiff’s
fact got Mr.
type
Harding
survey part
sometimes referred to as a
to
Robert G.
the
of
many years
plaintiff’s
September
“character”: She has lived for
On
23, 1952,
land.
in a
dwelling
plaintiff signed warranty
a recluse
makeshift
on the
a
the
deed Mr.
to
the brush-covered
30 acres of
Noble of about
the land. The
Farmington,
of
signed
hills east
Utah. Her
was
the
document
office of at
unique
and
living,
home
manner of
B. Hammond
torney
Bountiful,
Wendel
at
again
below,
quite
acknowledged
we will
refer
to
are
the
signature
who
ways,
plaintiffs
notary.
detached from civilization and its
The
version of this
unspoiled
trappings
signed
modern
is that she
paper
a
transaction
so
electricity
survey
a
water or
or the con-
of
running
could be
the
there
land. Arid
that
trivances attendant
therewith. The sus-
admits
there had
she
been an
while
picions
to
upon
agreement
limitation
her
sell some of her
cerebral
land
oral
to
conveyance
she
claims no
was
equipment were such that before
was
Noble she
Mr.
Fleming
Co.,
Fleming
Felt
137 credibility showing judge knew been cheat- exclusive of the of the that she she had shortly witnesses, weight given ed after the evi- out to original conveyance. unusual dence and But there are the facts to be found therefrom. here, be- This present appraisal ability includes factors which we discuss of the low, which taken into account witnesses must be to know and understand and their determining capacity must whether the trial court to remember. The court’s prerogative in accord- refusing be overruled in to find of course does far go not so permit ance with to the defendants’ contention. him stubbornly ignore guided refuse to be credible, uncon- addressing question wheth tradicted evidence when all reasonable make the judge obliged er the trial was minds accept would it. That could result defendants, demanded is finding by the it in arbitrary and unreasoning denial or dis- keep principles well in mind certain tortion of justice. Nevertheless because of applicable required fact where it is that a the prerogative just mentioned judge found re and the court affirmatively aspects all case, if the testimony of compel fuses to do so. In order such a witness is any affected with frailty which finding necessary it is that the evidence might reasonably be considered casting concerning the fact not suspicion upon it or discrediting its ac- quality be of sufficient and substance to curacy truthfulness, or the court is not support true, that it must finding but it accept bound to as the fact go beyond that and be such that all rea and so find. And the rule is not otherwise sonable minds would so conclude. theOn because the happened witness to be a party hand, any other if there is reasonable basis action. evidence, evidence, or lack of in the Consistent with the observations just honestly say reasonable minds could made, appraising the testimony plain- not convinced of such were facts tiff DeVas the trial judge was evidence, en- preponderance of the then the titled consider all of the facts and court ruling should be sust circumstances which shed light on its re- ained.3
liability:
years'
She was 78
age;
was
hearing; appeared
Due to his function as the
hard
de
very
im-
pulsive;
advantaged
irritated;
of the facts and his
easily
terminer
and was an-
proximity
tagonistic
opposing
in close
to the
position
witnesses
toward
counsel. The
trial,
privilege
judge
is his
manifested
be the
eagerness
commendable
Page
Security Ins.,
statement
in Stickle v. Union Pacific
also in
See
v. Federal
Co.,
477,
837;
P.2d
R. R.
122 Utah
Utah 2d
goats, and has upon “that Mr. Noble in fact relied quite in char- ineptness, DeVas her knowing Mrs. seems that she would trial surroundings. The make such not deductions as a acter with rea- “de- being in a person, her as and deliberately sonable has. judge referred some reveal- prevented and made and bring condition” misled her her mented her her judgment his of earlier and as to at an time comments action ing degree of con- claim the capacity estopped to statute of limita- mental placed in her testi- matter.” in this that could be tions fidence mony : significant Having a bearing on the above compe- degree Mr. point some is the Gene
“Hattie has Whea- between that and testified that tency, her line don who but conversation Noble, response questions is narrow. personality Nr. commitable land, gotten as to he had Hattie’s ****** how Mr. signing docu- he her denies Noble said that had “tricked” out of obviously “She it; possibly an Noble ments, which could not Nr. also stated if obviously lie, years, done nothing is a lie. about it for seven intentional [*] “I find that her [*] [*] ability to recall [*] [*] events v “then it was outlawed”. judge similarly gave his opinion explain gone. are now quality reliability to the of the testi- [*] [*] [*] [*] [*] [*] mony the defendant Noble: “ * * * that the cheated account knew she had been Mr. Noble’s tilings out her more than three false.” obviously
years prior to the commencement of action. Notwithstanding recognition our ordinarily person will be
the rule attacking finding forgery *6 by testimony against his his bound own unsupported by second deed competent interests, under rule cannot be invoked that evidence, point the defendants make one here, the circumstances where which worthy we think of comment: that court, by ample justification in supported testimony the expert, handwriting of the record, party the that the has concluded Percy Goddard, Mr. was not credible J. tes has such mental limitations that her competent nor because it grounded timony is It must be remem unreliable. upon comparison signature on the bered that the of construction rules deed with exemplars improperly admitted interpretation purposed to of evidence are in They evidence. urge that where an ascertaining aid in the truth and admin examplar signature given after the con justice istering and that should not be troversy arisen, pur has and for the sole rigidity unreasoning distorted into ob pose comparison, of such testimony based accomplishment stacles to the ob of that upon it admissible, is not citing Chemical j ective. Exchange Corn Bank & Trust v. Frankel al.,4 et and the annotation thereto at 72 Under the circumstances it would seq. A.L.R.2d 1270 et We acknowledge the travesty upon justice abe to accede to the merit such a rule under some circum defendants’ demand that the trial court be stances possibility because of the of simula compelled to believe and make findings deception. tion or upon But the text relied plain accordance with erratic statements the defendants makes what regard we may tiff have made that would result page sound statement at 1276: lending this court’s its assistance “ * * * compounding trickery the Most and deceit courts which which the trial court found the have considered the defendants have have tak- indulged plaintiff position in to cheat the competency, en the out of her paying comparison without for it. as a standard of to estab- This we deign genuineness will not to do. It is our lish of handwriting, conclusion writings that there is substantial basis in made after the controversy the record depends upon the trial court’s refusal arose justify find circumstances (Fla.App.) 4. 111 So.2d A.L.R.2d writings under an perpetrated defendants had such offered egregious added.) upon hapless plaintiff, were (Emphasis made.’’ fraud this imposition requisite elements punitive here, damages present. Mr. The amount expert are witness awarded Goddard, unques disproportionate to the man is not so appears wrong done, experi competence and to the amount of tioned nor integrity, say that requested recovery, ence that we could in this Plaintiff was field. the court exemplars abused the latitude of discretion large make a number of allowed it just prior setting signature (35 made) damages.5 were a standard of com trial to be used (respond- Affirmed. Costs parison question signature on the with the ent). safety usually
ed in num deed. There is that the bers and it is assume reasonable WADE, J.,C. McDONOUGH large expert requested in order this number CALLISTER, JJ., concur. writing of her the true characteristics HENRIOD, (dissenting). any attempt at de
could be seen and that Justice ception Any would be minimized. weak I am constrained to dissent. The facts existed in the reported ness that have opinion in the main slant more *7 objection made the basis of the as to the on favorably in the plaintiff’s direction of the weight exemplars went to rather than its contention, they as should do in this case. admissibility. It was within the its justifies Whether this a conclusion that her trial judge discretion the court to theory of sound pointed fraud up of is by and clear testimony proffered competency of the the convincing is matter, evidence another one receiving see no abuse thereof in we may and any debatable in given set it. of may There circumstances. be opposi- may
tion evidence that
be so unworthy of
is
Yet to consider
the
belief as almost
of
discountable in toto.
however,
of
damages. The award
Aside from that
damages is
it my opinion
$200.00
is
had
taking
Mr. Noble
that
as
amount
received for
undenied the
the
facts recited
itself,
opinion
of
on
granting
prop
an easement
the
in the main
do
the
not seem
Basin
clear
erty to the Weber
Water
be so
and convincing
District
as to vitiate
solemnity
sealed,
As
the attack on
the
of a
sound.
the
recorded
and
$750
instru-
punitive
ment,
damages:
any equitable
In
unattacked on
view
awarded
of
basis for
findings
years..
of the
and the
trial
about seven
belief
court
the
274;
Gaisford,
Damages,
v.
5. See 15 Am.Jur.
See.
Evans
Utah