FIRST SECURITY BANK OF UTAH v. BURGI et ux.
No. 7622
Supreme Court of Utah
December 6, 1952
251 P. 2d 297
Defendants insist that plaintiff should be charged for added expense of changes made in the plans requiring extra wiring, cemеnt work, etc. The trial judge apparently believed plaintiffs’ account of the transaction,—that the changes were included in the price stated in the second contract. There is evidence of sufficient substance to sustain the finding, justifying affirmance under principles heretofore enunciated by this court.1 The trial court awarded $250 as a fee for plaintiffs’ attorney, and the figure does not appear unreasonable.
WOLFE, C. J., and WADE, McDONOUGH, and CROCKETT, JJ., concur.
P. LeRoy Nelson and Arthur Woolley, Ogden, for appellant.
Thatcher & Young, Ogden, for respondents.
McDONOUGH, Justice.
This is an appeal from a judgment in an action tried by the lower court without a jury. Defendant appeals from
On February 21, 1935, Fred Burgi, by warranty deed, conveyed to Clyde Burgi, his son, a piece of property upon which stood a store building in which Fred Burgi conducted a small grocery business. This deed was recorded on March 4, 1935. On March 3, 1936, Clyde conveyed the property back tо Fred by a warranty deed which was recorded on March 5, 1936. Fred then executed a warranty deed dated November 18, 1936, which purported to convey the property to Clyde. This latter conveyance was not recorded until February 7, 1950—five days after the death of the grantor. On January 29, 1937, Fred executed a Bill of Sale which assigned all the stock of groceries, fixtures and furnishings of the grocery business to Clyde. The lower court found that there was no delivery of the deed or bill of sale; that they were executed for and with the intent that they would not be operative until after the death of the decedent, and concluded that the documents were testamentary in character and intent. Hence, the property and business were to revert to the estate to bе administered by the plaintiff. The defendant appeals from this finding and conclusion.
The record also reveals that Fred opened a checking account with the Commercial Security Bank on October 16, 1934, under the name of “Burgi Grocery and Meat, Fred Burgi.” On June 12, 1940, Fred Burgi and Clyde Burgi signed a card authorizing the bank to treat them as joint depositors but which did not change or mention the name of thе account to be so treated. The court concluded that the original account thereby was made a joint account and that Clyde had full rights or survivorship in respect to the money deposited in such account. Plaintiff cross appeals from this ruling. We will discuss these items in the order stated.
On February 21, 1935, when Fred Burgi conveyed the property in dispute to the defendant he also conveyed other pieces of property to various other children. In each deed he reserved to himself a life estate and each deed was promptly recordеd. When the property in dispute was, after being reconveyed to Fred, again deeded to the defendant in 1936, the deed contained no reservation of a life estate and was not recorded until 14 years had passed and Fred had died. Notwithstanding the signing of the deed and the bill of sale, the deceased continued to operate the business and to live on the premises to the same extent as he had done previous to the signing of these documents. In a 1947 statement to Dun & Bradstreet, deceased gave the name of Fred A. Burgi as the owner of the business. In 1948, after deceased‘s marriage to his widow, he rendered another statement to Dun & Bradstreet in which he reported
“business building, title in name of Burgi and wife; home, title in name of Burgi and wife.”
All sales tax returns and applications for business licenses reрorted the owner to be “Fred Burgi, Burgi Grocery,” although the 1949 business licenses stated C. A. Burgi to be the proprietor. Deceased during his life was assessed, and paid, the real and personal property taxes levied against the property and business. Fred Burgi also managed the apartment behind the store; collected the rent therefrom; gave receipts for rent paid; purchased the merchandise for the store; cashed checks and made loans from money that was kept in a vault in the store basement. He gave no indication of retiring from the business or ceasing to operate and treat it as his own. Further, there is testimony that immediately upon decedent‘s death the defendant took
In contrast, the defendant and his immediate relatives testified that the deed and bill were in the possession of the dеfendant; that he kept them along with other valuable papers in a red chocolate box over his kitchen sink; and that deceased had made many statements to the effect that in case he should die “everything was taken care of” and that “the business belonged to the boy [defendant].”
Delivery is essentially a matter of intent. Such intent is to be arrived at from all the facts and surrounding circumstances, both before and after the date of the deed, including declarations of the alleged grantor where it appears the declarations are made fairly and in the ordinary course of life. Stanley v. Stanley, 97 Utah 520, 94 P. 2d 465; Mower v. Mower, 64 Utah 260, 228 P. 911, 914. The testimony reveals that the deceased clearly intended that the deed and bill of sale pass the property to the defendant. The facts and circumstances, however, support the trial court‘s finding that the deceased had no intention to pass title immediately, but that such deed and bill of sale were to become operative upon the death of the decedent. Under such circumstances the deed and bill of sale were clearly testamentary in character and intent and were inoperative since they did not conform to statutory requirements for testamentary disposition. In re Alexander‘s Estate, 104 Utah 286, 139 P. 2d 432.
While upon an appeal of a case in equity, this court may review the findings of fact as well as the conclusions of law; nevertheless, the findings of the trial court will not be set aside unless it manifestly appears that the court has misapplied proven facts or made findings clearly against
Defendants assign as error a ruling of the trial court which prevented defendants’ attorney from testifying in the case. The trial court ruled that his testimony was privileged and inadmissible under the provisions of
“(2) An attorney cannot, without the consent of his client, be examined as tо any communication made by the client to him, or his advice given therein, in the course of professional employment; * * *”
Defendants’ attorney noted an exception to the ruling but made no offer of proof as to what his testimony would be. All that appears in the record brought up is that the attorney, after being sworn, stated his name, his residence, and the fact that he was an аttorney. He then stated that he was the attorney who prepared the warranty deed in question. He was then asked by counsel for the plaintiff whether he was employed at that time by Mr. Burgi to prepare the deed. Upon his answering in the affirmative, the recited objection to his testimony was interposed and was sustained by the trial court. In this state of the record, the ruling of the trial cоurt was clearly erroneous. Anderson v. Thomas, 108 Utah 252, 159 P. 2d 142. It remains to consider whether the rejection of such testimony was prejudicial.
Contrary views, it seems, are entertained on this question. A number of decisions are to the effect that where the record shows that evidence has been improperly excluded, it will be presumed that the error was prejudicial to appellant unless the contrary appears. Other decisions hold that one who complains on appeal of
“In will contest, alleged error in exclusion of evidence concerning сonversation, on ground that conversation was not proper rebuttal, would not be considered, since failure of record to disclose substance of such conversation rendered it impossible to determine whether such exclusion was prejudicial, if erroneous.”
Arizona has consistently followed such rule. See Musgrave v. Karis, 63 Ariz. 417, 163 P. 2d 278, and cases there cited. The rule, the reason therefor, and a recognized exception thеreto, are well stated by Circuit Judge McDermott in the case of New York Life Ins. Co. v. Doerksen, 10 Cir., 75 F. 2d 96, 101, in the following language:
“Where an objection to evidence is sustained in an action at law the general rule is the record must disclose the substance of the proffered evidence before there can be a reversal because of its rejection. An offer to prove is the accepted method of bringing the substanсe of the evidence into the bill of exceptions. The reason for the rule is that judgments are not reversed unless error is made to appear, and without something in the record to disclose the substance of the rejected evidence, error does not appear. There are many authorities on the point.”
Numerous Federal cases are then cited in support of the rule. The writer then notes an exception to the rule and states such exception in the words of Mr. Justice Harlan in the case of Buckstaff v. Russell & Co., 151 U. S. 626, 637, 14 S. Ct. 448, 452, 38 L. Ed. 292:
“If the question is in proper form, and clearly admits of an answer relevant to the issues and favorable to the party on whose side the witness is called, it will be error to exclude it.”
Palpably from the recital of the record herеinbefore made, there is nothing to indicate to this court, assuming the witness to be competent, that his evidence would be
As stated hereinabove, plаintiff has cross appealed from that part of the judgment below which decrees that the checking account with the Commercial Security Bank was a joint account and became the property of Clyde upon the death of Fred. It is plaintiff‘s contention that the evidence in the record does not support a finding that any joint bank account was in fact creаted. The original bank account of Fred Burgi was entitled “Burgi Grocery and Meat, Fred Burgi“. The card signed by the defendant and the deceased, which authorized the bank to treat them as joint depositors, contained a space in which the name of the account was to be written. Such space was left blank and no reference was made to the original account heading
“The undersigned, joint depositors, hereby agree, each with the other and with the Commercial Security Bank, Ogden, Utah that all sums heretofore or hereafter deposited by said joint depositors or either of them, with said bank, to their credit as such joint depositors, in the account above mentioned, shall be opened by them jointly with the right of survivorship and be subject to the check or order or receipt of either of them or to the survivor of them, the heirs, executors, administrators or assigns of either.” (Emphasis added)
This card was dated June 12, 1940. No new account was at that time or thereafter opened by the bank to which any transfer or deposit might be made. All deposits made in the bank in question and all withdrawals therefrom were credited and debited to the original account, namely the “Burgi Grocery and Meat, Fred Burgi” account. There is nothing in the record to indicate that after the signing of this card anyone other than Fred Burgi either made deposits thereto or drew checks thereon. As far as the record reveals, he continued to treat the account as exclusively his own as he had done prior to the signing of the card in question. Although nearly 10 years transpired from the date the card bears to the death of Fred Burgi, there is no evidence of any act upon the part of the defendant which would indicate that he had any present interest in the Fred Burgi account.
It is true that where an intention to create a joint account is clearly expressed in a written contract executed
These principles, however, have no application to the facts of this case. Here we have no contract which clearly expresses an intention to create a joint interest in any particular fund. The contract executed by these parties does not name an account to which it applies. The bank was not instructed as to what account was to be owned and treated jointly. No direction, so far as is shown by the evidence, was given such bank to transfer any funds to the joint ownership of the decedent and defendant, nor was any direction given to change the name of the account carried under the name “Burgi Grocery and Meat, Fred Burgi“. Indeed, the fact that the depository bank neither made such change in the account on its records, nor transferred the balance in said account to a new account, is evidence of the fact that no such direction was given. Since decedent after the signing of the described card continued as theretofore to exercise complete control over the account theretofore existing and defendant committed no acts inconsistent therewith, except to immediately withdraw the entire amount on the death of the decedent, it was manifested at the time of the signing of the card, there was no intention that defendant obtain an immediate joint interest and ownership in the fund. Lacking such intent, no joint interest was created. Christensen v. Ogden State Bank, 75 Utah 478, 491, 286 P. 638; Holman v. Deseret Savings Bank, 41 Utah 340, 124 P. 765; Columbia Trust Co. v. Anglum, 63 Utah 353, 225 P. 1089. The defendant must therefore re-
WOLFE, C. J., and CROCKETT, J., concur.
HENRIOD, Justice (concurring and dissenting).
I concur in the main opinion‘s affirmance of the lower court‘s judgment that there was no delivery of the deed and bill of sale, but dissent from the opinion‘s reversal of the lower court‘s judgment that there was a joint bank account.
WADE, Justice (dissenting).
Although I agree with the law announced in this case, I do not think it properly applied to facts here presented. I agree that generally the exclusion of evidence is not prejudicial where there is no disclosure of the substance of the proffered evidence, but this case seems to come within the exception to this rule stated in the prevailing opinion quoting from Buckstaff v. Russell & Co., 151 U. S. 626, 637, 14 S. Ct. 448, 452, 38 L. Ed. 292, wherein Mr. Justice Harlan for the court said:
“If the question is in proper form, and clearly admits of an answer relevant to the issues and favorable to the party on whose side the witness is called, it will be error to exclude it.”
I cannot agree that
“Palpably from the recital of the record * * * there is nothing to indicate * * * that his evidence would be either competent, relevant, material or favorable to appellant.”
It seems clear that, had the objection not been sustained, this witness would have testified to facts rеlevant to the issue of the delivery of this deed which would have been favorable to the defendant who called him thus bringing it squarely within the quotation from Justice Harlan. To
Moreover, this evidencе was not excluded on the ground that it would not be relevant, material or favorable to the party who called the witness, but on the ground that it was privileged. The court and all the attorneys assumed that the evidence would be relevant to the issues and would be favorable to the party who called the witness. Had the objection been sustained on the ground that there was a failurе to show its materiality or that it would be favorable to the defendants, no doubt a showing of what was intended to be proved would have been made.
I also think there was sufficient evidence to show a joint account in accordance with the court‘s finding.
Notes
“A. My name is P. LeRoy Nelson. I reside at Ogden, Utah. I am a practicing attorney before this court. I am the attorney and person who prepared Defendant‘s Exhibit 4.
“Mr. Young: May I at this time interrupt Mr. Nelson to ask a question on Voir Dire?
“The Court: Yes, go ahead.
“Mr. Young: Voire Dire, Mr. Nelson:
“Q. At that time, Mr. Nelson, were you employed by Mr. Burgi to prepare that deed? A. Yes.
“Q. I now object to the testimony of the witness on the ground it is privileged under the provisions of Section 104, I suppose I will have to get the section, it comes as rather a surprise to me, -104-49-3, Subdivision 2.
“The Court: Alright. The objection is sustained.
“Mr. Nelson: Note an exception.
“A. And I prepared a purported Bill of Sale.
“Mr. Young: May I have the same objection to that?
“The Court: Yes, and the objection is sustained.
“Mr. Nelson: Note an exception.”