*1 case, The instant the acts cited allegation in
defendant to sustain his
competency, falls within the ambit of an
attorney’s legitimate judgment, exercise strategy.5
as to trial tactics or There is no pro
basis inept to hold was so counsel farce,
ceedings became a or a De sham.
fendant’s conviction was a result of the ev establishing guilt beyond
idence a rea
sonable doubt.
HENRIOD, J., ELLETT, C. TUCKETT,
CROCKETT JJ., concur. Respondent, FOWLER,
Ines C. TAYLOR, Taylor W.
Harold dba Associ- Hal ates, Appellant.
No. 14399.
Supreme Court of Utah.
Aug. 16, 1976.
Farni,
State
112 Ariz.
Bryce Terry Christiansen, E. L. City, plaintiff-respondent. Salt Lake for MAUGHAN, Justice: action, Plaintiff alleging initiated by employed was defendant as a real engage estate in the sale of con- owned Moun- dominium units Corporation. tain She claimed she acted request as a real at the estate of defendant; such; performed all duties as for and defendant was indebted to her services, her reasonable value of capacity labor as a real estate bro- alleged ker. She that a reasonable and amount, customary to be awarded for such per sales was one cent of total during made she was so em- ployed.
Upon trial to the court awarded in the sum of appeals re- therefrom.1 We verse, plain- with instructions to dismiss tiff’s first Costs to defendant. claim. During parties autumn of both for employed as real estate salesmen were Corporation. Defend- Treasure Mountain corporation’s real director ant was plaintiff’s supervisor; estate sales and was an licensed with the State under were li- corporation, a who was officer of corporation censed real estate broker. In connec- constructed two condominiums. corpo- the units the tion with the sales of management pool a rental ration offered security. agreement, was deemed security Appropriate registration licensed made, parties were and both 1972. security salesmen October licensed defendant was December broker-dealer. as a securities employ an inde- Mountain determined units, market agent pendent sales defend- contract with into a and it entered capacity in that him engaging Linebaugh Jardine, ant Kent B. Johnson salesmen per cent. Baldwin, City, for defendant commission Lake & Salt 3½ cent, receive were to appellant. 2½ her first sought on from the award further sales action. and was awarded cause of certain transactions on only appeals judgment thereon, but defendant broker organization for defendant’s retain one cent for sales was to until qualified corporation. for his license. agent as sales Mr. Monson had offered without so act organization had a list Defendant’s sales charge. He also testified that another persons an who had indicated interest salesman in his had a broker’s purchasing the units as soon as defendant license, could have been activated qualified to them. Defendant market *3 and requested, defendant have would so eligible procure a real was not to estate plaintiff had demanded He license; plaintiff if broker’s he asked so presented showing compensa- evidence permit and she her license would activate paid tion to a real estate broker for the her broker’s license. organization his use “use” of according his license varies agreed; however, per- defendant She circumstances. paperwork, paid and li- all the formed A review of the record does not reveal a and The broker’s license cense fees bond. allega- scintilla plaintiff’s of evidence to sustain the issued in name with defend- plaintiff’s complaint in tion that she had as ant and two others listed salesmen. services, performed in the and labor licensing completed, necessary With capacity of a real estate broker for defend- opera- defendant’s commenced ant. Her sole services were the execution January defendant tion on as signature applications in of her on the con- plaintiff broker as securities and real es- license, bond, nection with broker’s and 19, 1973, February tate broker. On de- account; assumption trust and acquired fendant his real estate li- risks to her status as a broker incidental cense, plaintiff her and deactivated license. organization. The defendant’s sales During defendant 50-day this interim re- per- record further reveals defendant pursuant to his contract with Treas- ceived his or- management formed all duties for commission, per his ure Mountain one paid expenses aris- ganization and all the $21,930.50. During which amounted selling agent ing performance, from his as period plaintiff as a same of time salesman Corporation. Mountain Treasure $12,335, per cent commis- received her 2½ units Plaintiff con- sion on the she sold. January trial court found between organi- as a tinued salesman 19, 1973,plaintiff performed and February 4, 1973, May zation until when defendant broker and sales- services as a real estate 25, 1973, discharged July her. On about Also, that inman behalf of defendant. plaintiff for the first time demanded broker, as a performing these pay per her cent com- the one expected compensated; that he from Treas- mission had received known defendant knew or ure Mountain. expectation. such trial, parties agreed that At at the customary It is for a real broker estate requested time defendant to use paid portion to receive a compensation was license no discussed. by property. real seller of did not re- testified brokerage earned a commission of one compensation, proffered quest he and none. his with cent of his sales under contract unequivocally testified duties $21,930.- Mountain, which totaled change from January did not after question. 50 for the These com- prior Nevertheless, those she had thereto. compensation missions for defend- were as she she testified consented when a real ant’s services as estate broker broker, expected be the ex- securities broker. Defendant incurred cent commission. op- penses $2,500 in connection with selling agent erations
Defendant testified that he had contact- com- friend, Monson, Corporation, thus the net ed a a real Mountain Robert estate broker, $19,430.50. trial court inquired he mission whether would concepts underlying tinction of these reasonable
found that
value
plaintiff,
obligations.
performed by
for de-
two
estate
was one
fendant as
real
implied in fact contract
An
differs
by de-
half
net commissions earned
of the
express
only in
from an
contract
mode of
fendant,
expression.
law
concluded
matter of
The court
express
.
im
.
. A contract
implied in fact
agreement,
there was an
plied by
expression
reason of the
of of
law,
pay
would
acceptance,
fer and
there is a
—whether
value of her serv-
the reasonable
assent, by
of mutual
words
manifestation
that this
ices as a real estate
both,
reasonably
or actions
agreement
required
in writ-
to be
interpretable
indicating an
intention
Frauds,
ing
the Statute
Section
under
bargain
to make
with certain terms or
25-5-4(5), U.C.A.1953.
may be
reasonably
terms
made
*4
basically
certain. The elements are
iden
that the
appeal,
On
defendant contends
cases, although
in
tical
ruling
eviden-
in its
that the al-
trial court erred
tiary
may
expressed differently.
required
facts
be
be in
leged agreement was not
25—5—
writing
valid under Section
to be
.3
4(5), U.C.A.1953.
obligation
quasi
A
is
contractual
25-5-4, U.C.A.1953, provides:
Section
unjust
on
not a true contract but is based
agree-
following
every
cases
In
enrichment or restitution.
agree-
shall be void unless such
ment
promise
purely
is
.
.
. The
ficti-
ment,
some note or memorandum
or
implied
tious and is
in order to fit the
thereof,
writing
by
is
subscribed
remedy.
actual
cause of action to
charged
party to be
therewith:
implication
an
liability exists from
of law
the facts and cir-
that arises from
Every agreement authorizing or
(5)
agreement
independent of
or
cumstances
pur-
agent or broker to
employing an
presumed
the facts in-
intention. Wliere
compensa-
sell real estate
chase or
for
pay,
duty
dicate a
defendant to
tion.
imputes
promise
the law
him a
to ful-
4
fill
obligation.
...
provision of
the Statute
This
is
contends there
no evi
purpose
protecting
Frauds
for the
finding
dence to sustain a
there was an im
owners
land from fraudulent
plied-in-fact
this conten
contract. With
This
claims
commissions.
fictitious
tion we
for there was
evi
provision
agree,
must
no
apply
agree
not
to an
does
oral
dence of
action or conduct that rea
ment
a broker and
between
another
sonably
salesman,
could be construed
manifesta
agent to share a
commission.2
indicating
tion of
an inten
mutual assent
is
assigned
Also
as error
the conclusion
tion to be
a
whose
bound on contract
terms
agreement
trial court there was
an
were certain.
implied
parties,
between the
fact and
no
conclusion,
There was
evidence
urges,
law.
Such
labor,
perform any
was to
serv-
is
reason of
dis-
by
inconsistent
basic
Johnson,
417,
real estate to be
commissions for the sale of
v.
108
2. Anderson
Utah
160
writing.
(1945) ;
Morgan
Holland
P.2d
v.
725
Properties Company,
Cal.App.2d
Peacock
168
Co.,
v.
Steel
1
3. Rasmussen
United States
(1959) ;
Realty,
Glendale
under which the trial court circumstances for, suffi- pay
found he should there was support
cient finding consideration to promise implied pay.2 having so issue court resolved the just plaintiff, stated in favor of the it fol- Utah, STATE of Plaintiff and necessary consequence, lows as Respondent, be entitled to some The question then arises what VAUGHN, Frank Moran and justifiable. amount was reasonable Appellant. This similarly for the trial It is court. No. 14377. shown, opinion, as recited in the main Supreme during to the broker Court Utah. income question $21,930.50, Aug. 20, 1976. amounted to less ex- penses $2,500, leaving net commission
for the real estate broker of upon only,
Looking at surface on sales would gone as such broker.
However, properly recog- the trial court
nized had actually that the defendant done
practically all of the and that he was compensation. Wherefore,
also entitled to just
the court deemed it wise and to divide gave commission and only half thereof.
We look at total circum- light
stances in the of the standard Rules require us not Review to become fact, but to recognize
finders of the court,
prerogatives the trial to accord
verity findings and judgment,3 findings sustain the reasonable substantial ba- them; support
sis in
the evidence
McQueen,
380,
leading
2. See Woods v.
Kan.
404
1.
and often
195
See the
cited case
955; Williston, Contracts,
Refining
Underwood,
102A
Co. v.
P.2d
1
Sec.
Western Oil
83
(3d
Corbin, Contracts,
85,
1957) ;
Ind.App. 488,
86;
149
ed.
5
1107.
§
N.E.
see dis
Raymer,
32
cussion in Ross v.
Wash.2d
129;
Clothier,
Hendrickson,
Hardy
McCollum v.
2d
495
P.2d
27 Utah