EL RANCHO ENTERPRISES, INC., a Utah Corporation, Marvin Miller, dba Trailer City, Gordon Chidester, dba Grant View Trailer Park, and Quality Inns International, a Delaware Corporation, Plaintiffs, Appellants, and Cross-Defendant, v. MURRAY CITY CORPORATION, a Municipal Corporation, Defendant, Respondent, and Cross-Appellant.
No. 14693
Supreme Court of Utah
June 8, 1977
567 P.2d 1090
The rule in the State of Utah, as elsewhere, is that parol evidence may be admitted to show the intent of the partiеs if the language of a written contract is vague and uncertain.1 On the other hand, such evidence cannot be permitted to vary or contradict the plain language of the contract. There is nothing vague and uncertain in the lease about whether lots 25 through 30 are committed to parking.
The lease states that the parking area shall be ” . . . located on lots 25 to 30, inclusive, of said block 26, . . . ” That language is certain and specific. The only thing uncertain in the description is where the additional 537.5 square feet should be located. The answer is contained in the language following the above ” . . . and upon property adjacent thereto on the west.” But that question was not evеn presented to the District Court. The question here is whether the lessor could substitute area to the west for all or any part of lots 25 to 30.
The District Court‘s construction of the language used by the parties requires the substitution of the word “or” for the word “and.” All words used by the parties must, if possible, be given their usual and ordinary meaning and effect.2 The usual and ordinary meaning of the word “and” is “something in addition to.”3 The effect of the Trial Court‘s interpretation is that the parties instead mеant to say “something other than” — which is the usual and ordinary meaning of the word “or.”
If it is true that it was not the parties’ intention that the parking area should be on lots 25 to 30, then they did not choose apt words to convey their meaning.
The pаrties’ intention is to be determined from the final agreement executed by them and not from prior or contemporaneous conversations, representations or statements. The parol evidence on which the Trial Court based its decision concerned all of the negotiations and conversations which preceded the execution of the final lease, and said testimony was given by the scrivener of the document who is an attorney at lаw. If it was in fact the intention of the parties that the parking area could be located anywhere on the south half of lessor‘s property, they had only to say so. To say now that the parties did not mean what they said in clear and plain language is to vary and contradict the terms of the contract.
The judgment is reversed with instructions to enter judgment in favor of the plaintiff, to which costs are awarded.
ELLETT, C. J., and CROCKETT, MAUGHAN and HALL, JJ., concur.
Ray R. Christensen and R. Collin Mangrum, of Christensen, Gardiner, Jensen & Evans, Salt Lake City, for appellants.
Merrill Hаnsen, Murray City Atty., H. Craig Hall, Asst. Murray City Atty., Murray, for respondent.
HALL, Justice:
This appeal arises out of a dismissal of a suit for overcharges on water and sewer services and for discrimination in failing to provide usual city services.
The basis for the dismissal by the trial сourt was the notice requirement of Section
Plaintiffs maintain: (1) that Section
Initially, plaintiffs assigned as error the trial court‘s refusal to consider defendant as estopped to assert failure to give notice of claim by reason of its settlement offer, however, such was specifically abandoned at the time of argument.
The second assignment of error appears to be well taken and dispositive of the appeal.
The common law exception to governmental immunity pеrtaining to equitable claims has long been recognized in this jurisdiction. In Auerbach v. Salt Lake County1 this court quoted Mr. Justice Field in Argenti v. City of San Francisco, 16 Cal. 256, in affirming the trial court‘s judgment on a contractual claim where the notice requirements of statute were not met:
“If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it — not from any contract entered into by her on the subject, but from the general obligation to do justice which binds all persons, whether natural or artificial. If the city obtain other property which doеs not belong to her, it is her duty to restore it; or
if used by her, to render an equivalent to the true owner, from the like general obligation. In these cases she does not, in fact, make any promise on the subject, but the law, which always intends justice, implies one; and her liability thus arising is said to be a liability on an implied contract . . . .”
In Wall v. Salt Lake City2 this court again held that an equitable claim may be brought without the necessity of first presenting a claim for damages. The basic premise of Wall was reaffirmed in Aagard v. Juab County3 wherеin this court held that a cause of action to quiet title and for injunctive relief might be maintained without having presented a claim.
The foregoing cases have in no way been eroded by the passage of time or the enactment of the Utah Governmental Immunity Act, in fact, Greenhalgh v. Payson City4 reasons that since no common law exceptions were treated by the Act, nor abolished from it, they remain as viable exceptions thereto.
In this case the plaintiffs’ claims are based on equitable principles and are exempt from notice requirements since they are composed of alleged overcharges, made by mistake or fraud and without authority of law. They further claim the misapplication of utility ordinances and consequent unjust enrichment, arbitrary, capricious and discriminatory treatment, praying for injunctive relief, all of which sounds in equity. The fact that a claim is made for trespass is not fatal, and only inсidental, since by far the majority of the claims are based on equitable considerations.
The judgment of dismissal is vacated for further proceedings consistent herewith. No costs awarded.
CROCKETT, MAUGHAN and WILKINS, JJ., concur.
ELLETT, Chief Justice (dissenting):
The main opinion is based on the prinсiple of estoppel in pais regarding the notice requirement of the statute cited1 and relies on two Utah cases in support thereof. In my opinion, those cases do not justify the result reached in this instant matter.
The first case cited in the opinion is that of Auerbach v. Salt Lake County2 wherein Sаlt Lake County bought furniture and fixtures from Auerbach‘s assignor and gave a warrant in partial payment therefor. When the warrant was presented for payment, the county refused it, alleging, among other reasons, that there had been bribery on the part of one of the selectmen who authorized the purchase. The county did not offer to return the furniture but kept it and used it. This Court affirmed the judgment of the trial court in holding that it was the duty of the county to return, or offer to return, thе furniture or to pay the reasonable value thereof to the holder of the warrant.
The county there claimed that even if it were liable to pay for the furniture, Auerbach could not recover for the reason that hе had not filed a claim with the County Commission as required by the statute. This Court disposed of that claim in the following language:
This point, as appears, was made for the first time in the appellate court, and therefore, can not аvail the appellant, there being no statute in this state which expressly prohibits the bringing of an action on any claim before it has been so presented and acted upon. Such an objection simply goes in abatement оf the action, and, to have effect, must be urged by proper plea, or in some appropriate manner in the trial court, or the objection will be regarded as waived.
The other cited case is Wall v. Salt Lake City3. That was a case where the owner of
The plaintiff sued to quiet title to the area of each lot outside the street as designated on thе plat for damages and for injunctive relief. There was no question raised regarding the filing or failing to file a claim. This Court cited 3 Dillon, Municipal Corporations (5th Ed.), Section 1194, wherein it was said:
The author cannot assent to the doctrinе that, as respects public rights, municipal corporations are impliedly within ordinary limitation statutes. It is unsafe to recognize such a principle. But there is no danger in recognizing the principle of an estoppel in pаis as applicable to exceptional cases, since this leaves the courts to decide the question, not by the mere lapse of time, but upon all the circumstances of the case to hold the public estоpped or not, as right and justice may require.
This Court then said, “We hold that this case falls within the exceptional class of cases referred to by Judge Dillon, and that it is the duty of the Court to decide it as ‘right and justice require.’ It is our opinion that the city is estopped from claiming the premises in question as a public street.”4
As to the claim for damages in Wall, this Court held that it was not necessary to present the claim for damages to the City Council before bringing the action since the principal reliеf sought was equitable and the damage prayed for was only incidental.
The instant case is not equitable, nor do the plaintiffs show any peculiar set of facts that would make difficult the timely filing of a claim. They merely assert that (a) thе city misapplied its ordinances and overcharged them for water and sewer rates; (b) the city discriminated against them in failing to provide normal city services; and (c) the city took personal property and damaged thеir adjoining property.
The main opinion does not discuss the claim of defendant that this action is for a breach of contract to furnish services. I am unable to see any contract between the appellants and thе city. The city makes water available to its citizens but does not force it upon them. One who desires to be served must make it known by means of filing an application. There is no contract. If there is, then the city would be liable for a breach in case of a shortage of available water. The rates could not be increased without a breach of the agreement. If it be assumed that the contract provides for such fees as may subsequently be еstablished, then there is no contract because of a lack of definiteness.
To me, this overcharge by the city, if it be such, is a matter of adjustment and would require the filing of a claim. No claim was timely filed in this matter and, therefore, the appellants cannot recover in this lawsuit.
It is my opinion that the judgment of the trial court should be affirmed.