*1 P.2d 700 con- and clear the evidence —others beyond by proof vincing evidence —others HOLLAND, Administrator, al., Rex et to at- appears to me doubt —it reasonable Appellant, Plaintiff and expres- irreconcilable tempt reconcile the of this past decisions found sions al., COLUMBIA IRON MINING CO. et a middle adopt courts and many other Respondents. Defendants and either tenable under ground which is No. 8237. the Commis- the rule of rule the A.L.I. Supreme Court of Utah. it ob- I think Uniform Laws. sioners 16, 1956. Feb. other adopt one or should that we vious and, heretofore proposed rules of the rule strongly favor
stated, I am my Institute which Law
the American simple and unquestionably more
opinion is im- judges for trial
understandable confus- practical less
measurably more Appellate courts have jury cases.
ing in conflicting relating rules permitted long
too confuse trial presumptions to effect coun- give jurors and learned
judges mystifying arguing ab- excuse
sel an presumption is involved when
stractions presumptions If are there
in a case. presumption innocence than the legitimacy of child presumption of spe- call wedlock lawful
born in opposition gen-
cial consideration presumptions, let to effect us
eral rule them. I do not think designate
specifically of fraud is one presumption designation. special
calls decision opinion the trial my
In and the will reversed de- should
court bequest except as valid
clared Kostopulos.
devise participate.
WORTHEN, J., does not
The six causes of action set out in complaint amended charge corporate (respondents) conspiring defendants defendants, with one of the individual alleged participation in and aiding said *2 individual defendant in the fraudulent con- cealment of the amount him for being mining one-fourth interest in certain deposi- claims. The record consists of the tions of all the any- individuals who had thing transaction, affidavits, to do with the together pleadings. respond- with the The ents include the Mining Columbia Iron Company (hereafter referred to as Colum- bia) and its affiliates. question presented
The is as to whether any genuine any issue as to material fact 56(c), exists. Rule Utah Rules of Civil Procedure. If there issue, be no such then judgment Otherwise, must be affirmed. the action must be reversed and the re- spondents required to stand trial along with the individual defendants. preliminary The negotiations between the parties appear to have been conducted with- ’ n "Rawlings'," Wallace, Black, Roberts & out unusual incident significance. or City, appellant. :Salt-\Lake for Co-tenant in behalf of himself U1 Ellis, Behle, Dickson, Calvin A. Parsons and the other claims, owners of mining McCreá, Christensen, Gustin, Ray & E. had-opened discussions with Columbia con- Mattsson, Evans, Richards & Fred H. Salt cerning properties. a sale of these A sell- City, respondent,. fox, Lake $387,500 asked, $100,000 $287,500 for the Hollands and ' ' JONES, Judge. Mpreton District had been advised that Moretons.. "'’ summary judgment policy From á dismissing the Columbia’s was to lease prop- such action, ap- tonnage basis, 'from this 'corporate1'defendants erties on a but he insisted (cid:127) n ' (cid:127) interniediaté"appeal. selling. 'pelláírfs bring this' When -Columbia ascertained perfected, mitted the Hollands were satisfied. been had not claims proof Moreton stated that would be patents would Moreton was advised (Mathesius obtained. of title never did answer be obtained and abstracts letter.) the Holland this meeting, At submitted examination. Columbia, time, about same Moreton informed while these further advised that necessary Columbia that it accomplished by the were things closing papers prepared, two sets of sellers, magnetometer one would undertake use of respec- covering the Hollands property. examination of the interest, three-fourths sig- and one for the parties do these proceeded tive then natures of the Moretons one- covering things. dispatched Columbia a crew fourth (A interest. purpose elapsed.) month Then men out onto the ground for signed received a letter all of iron satisfying tonnage itself as the owners of the place, three-fourths interest attorney prepared ore in and its parties wherein was recited that said proceeded of a draft contract. Moreton satisfied to take for their interests patents the necessary obtain steps to and that Moreton sell might portion and ordered abstracts of title. Several “for price you whatever elapsed. appel- and he agree months Then one upon.” This communication satisfied Mathesius, lants wrote Co- Mr. Columbia’s *3 later, lumbia. A president, month requesting proposed Columbia received that the sale Hollands, another communication be cancelled because Moreton had misled body of plaintiffs $100,000 read as follows: their accepting into for interests properties when their were actu- “We you reaffirm our letter to of Oc- ally worth several times that amount. 16, 1948, tober respect to the offer When this communica- Mathesius received made your us to company for the Moreton, up tion he looked exhibited the sale of our interest and to the M letter, explanation. and demanded & H Claims at Desert Mound for the (cid:127) agreement Moreton showed Mathesius an $100,000 sum of cash. signed by all the claimants of sale “We made this offer to sell inter- our stipulated all interests it was wherein est for sum, this free and clear of all be offered (including Moreton’s) were encumbrances and lawful claims what- basis, tonnage More- $133,333.33, on a for soever. Patent on these claims has of that amount have one-fourth ton to now been issued and we hope for ah obtain in excess of anything he could plus early acceptance of odr offer. These documents did not $100,000. informed He Moreton satisfy Mathesius. “An interest in these also, claims is to be sub- Arthur proof held E. further and it is 306 first installment on was delivered $287,000) and to to when of ours concern
no accepted. adjourned. The then meeting interest sell whom terms.” what upon price or what present justiciable these Do proceeded attorney then company’s The controversy involving a fraudulent con checks, deeds, necessary prepare spiracy part re and concealment on the to deliver was asked receipts, Moreton spondents? re We think not. Insofar In for examination. title abstracts spondents concerned, nothing are there is completed company had meantime in this record to intention show Finally, figure survey. tonnage ally participated in the furtherance of stipulat- on, Moreton $387,500 agreed preconceived purpose design common to be this amount ing that appellants. defraud the See State of their for Hollands in cash Missouri ex rel. and to Use of De Vault v. interest, go remainder three-fourths Fidelity York, Casualty & Co. of New family) in (and members of to Moreton Cir., 343, C.J.S., 107 F.2d from 15 quoting the Hol- now Satisfied installments. 997; Conspiracy, p. Reitmeister v. § doing, what understood lands Cir., 691; Reitmeister, 2 162 F.2d Sobin v. plans to close the laid officers Columbia’s 71; Frederick, 501, 211 236 Mich. N.W. to as- notified Moreton was transaction. Elliott, Cal.App.2d Neblett in his office on a the sellers all of semble P.2d consummat- purpose of day certain gath- then parties All appellants sale. But assert ing the (Another month offices. are Moreton’s entitled to the benefit of certain infer ered They Hollands there executed The ences to from the be drawn facts. elapsed.) prepared for their argue had been because and Mathesius the deed accepted (in a check receipt, depositions) their fix did the exact signature, the parties differ some their acquaintanceship time when $100,000. began; exactly membership said what was the fact of in the same particulars as club; Respondents’ that Mathesius did not meeting. answer Hol done at letter; separate the docu- certain of and that land’s deeds maintain officers deny Appellants papers were drawn read aloud. co-tenants ments were may, transac- sign; reasonably it can after inferred Be as it this. *4 Hollands, (as agent and Mathesius completed as to of tion was Co completed their lumbia) conspiring together next were negotiators de Columbia’s But we not Moretons. The same fraud them. do ap with the feel that transaction out, permitted papers signed, pellants can be carried draw was favorable routine $71,875 (the these sum of inferences facts. in the Inferences check and a
307 reason, HENRIOD, J., aiding concurs. purpose of for the are made Zeits, 333 U. Maggio v. override it. not to Infer- 401, 56, L.Ed. 68 S.Ct. S. CROCKETT, (concurring). Justice probable more than nothing
ences are
opinion
Jones,
Judge
I concur in
explanations
facts.
natural
Am.Jur.
thereto,
supplement
set forth a
and as a
Washing-
alia, Kenney
inter
citing,
analysis
appears
further
the case as it
43, 128 F.2d
Properties,
App.D.C.
ton
plaintiffs’
to me. The
claim that the Co-
El-
Neblett v.
from in the
while he
talk
not to
warned
Hollands
responsible,
If Columbia is
be held
to
anyone
to
else about the matter.
upon
president
the conduct
Walter
of its
Hol-
appear
Arthur
The above facts
from
Mathesius,
collaborating
with
It,
lands’
oth-
therefore,
testimony
supported
neces-
and are
Moreton.
becomes
E.
er
the letters
claim
circumstances
sary
plaintiffs
to
shown:
set forth what the
(later
herein)
provide
referred to
which Mathesius
order
latter’s conduct in
requested and
analyze
presented
which Moreton
background upon
a
which to
carefully
the Hollands
sign,
for them to
part
played
therein.
price per
avoided
ton
recitation of the
that after conversations
appears
or the
purchase price
actual
realized
being
Mathesius,
the Hollands
Moreton contacted
claims;
from the
the fact that when Co-
respect
patenting
City
at Cedar
papers
lumbia furnished
it as one
handling
question
mining
claims in
transaction, Moreton returned them and
a
previously
with view
plaintiffs had
located
requested
conveyances
separate
two
sale;
eventually
that he
arranging a-
concealing
have the effect
so;-
attorney
doing
as their
acted
Hollands the full consideration
necessary
costs- involved
advanced
paid;
separate
the fact that
con-
the two
a
became
one-fourth
patenting
veyances were used
and the transaction
owner;-
for his co-owners
acted
the closing
plain-
managed
was so
that the
the claims to Colum-
negotiating a sale of
$100,000
tiffs 'first received their check for
fiduciary
;
bore
relation-
that Moreton
bia
they quite
about which
naturally would be
2' and, therefore,
Hollands
owed
ship preoccupied
somewhat elated and
while the
duty
to make
full disclosure
them
phase
han-
transaction was
facts;3 that he
have followed a
seems to
dled.
plan to
carefully studied
conceal from the
getting
that he
Hollands
legally responsi-
Mathesius can be held
interest, whereas, he was
one-fourth
conspiracy
plaintiffs
ble for
to defraud the
Motel, Utah,
8, Attorneys
Farnsworth
259
1. Morris v.
5 Am.Jnr. 286 n.
ciaries.
Strauss,
298;
297,
46;
C.J.S.,
v.
90
Fraud,
Strauss
16,
P.2d
sec.
37
at Law
§
857,
757,
Cal.App.2d
Omega
p.
P.2d
858.
203
See
Investment Co.
247..
v.
474,
Woolley,
797,
72
271 P.
Utah
as to
attorney
l-elationship
client
ex-
2. Whez-e
agent,
a co-owner acts as
see
where
Shaw
ists, parties
been held
sustain
733,
Shaw,
v.
160 Cal.
(1) particularly This is so because Mathesiüs club. the same conferring attorney was with his Mr. They these claims (2). discussed right along matter; Heald about the possibility of their upon of Rex the basis letter’ is Holland’s the Hollands Moreton had contacted before charged knowledge that Hollands.were or had interest therein. claiming that Moreton concealing was told Moreton that (3) Mathesius from them. patented that the claims be might suggest (8) Mathesius himself upon stated that position in a do busi- so would be of his then upon the basis knowledge and ness. advising attorney, Heald, they Mr. conversations, Pursuant these (4) decided that the Hollands should know the at Cedar Moreton contacted Hollands full facts before deal was closed. respecting the City claims. a letter (5) Mathesius received acc.omplish from. To (9) purpose above' 1948, September 14, Rex Holland dated ad- letter requested indicating that the Hol- thought that he was deceiv- vising the facts and lands knew were satisfied with transaction, and that the Hollands wanted them accepted a letter which sale, proceeds three-fourths of price, did not state nor the ton, considered be their fair price per and which he admits noticing share. so. doing omitted C.J.&., Conspiracy, 2, 9, pp. Thacher, Cal.App.2d 4. 15 996- 5. §§ Anderson v. 1005, passim. 172 P.2d answering han- that he did not recall whether in so participated
(10) Mathesius any one Mr. Pollack had asked him Hollands dling the transaction final questions, the an- check, more than a nor dozen about received their swers he made to them. while preoccupied were elated the transaction phase of Moreton’s con- (14)Another given matter consummated. picture: as bearing sideration on overall unequal parties. positions of the affixed (11) stamps were The revenue folk, appears poor that the Hollands were Hol- by the being to the deeds seen without inexperienced little and were learning lands. except All Rex were of ad- in business. interviewed (12) Mathesius was When Accordingly, age. immediate cash vanced said he Spanos, who attorney, Mr. importance to Those great them. Hollands, going to sue Moreton the other side transaction on immediately defensive became educated, experienced and skilled well that he advice volunteering the business, particularly transactions case, Moreton Spanos had a didn’t think this, practically limitless resourc- and with attorney co-owner. but as acting was not them, all of these facts es behind deposi- in his The latter fact he reiterated known Mathesius. tion two occasions. argue Plaintiffs if viewing *7 (13)"Matttesius"appears lacked to have light foregoing in the most favorable facts testimony. forthrightness in his One “a slight them there exists even doubt” to Pollack, attorneys, talked plaintiffs’ Mr. participated the as to whether Mathesius distance, ques- asking certain long fraud, summary to him a furthering judgment the Upon the transaction. concerning tions must be reversed. This somewhat over re- true, plaintiffs. that the conversation being advised states the case for the It is corded, indeed, sent immediately summary a judgment Mathesius that Mr. a is a dras telegram remedy for- delivery are, letter and a tic which special the courts and should publication of the con- reluctant Yet it bidding any use or be to use.6 a sal does have deposition, although purpose Upon utary jus his in the administration of versation. expressions indig- time, requiring indicate he was in not the tice trouble and trial, recording expense conversa- the showing the when nant about best facts tion, plaintiff possibly to recall the sur- and he seemed can claim the would not vividly, quite persisted judgment.7 he rounding it entitle him to a Indemnity McIntosh, Smelting, Zampos 112 v. Travelers 7. U. S. Ref. and Min 6. 1065, (Anderson Smelting, Cal.App.2d 245 P.2d 1068. v. U. S. Co. Ref. Mining Cir., Co.), 10 & 206 F.2d equally upon light done circumstances which are the most Viewing the evidence con- right wrong reconcilable with as with mean not plaintiff does -favorable duct.8 I think it true if some one pick out all court should re- reasonably more of the facts could be supporting aspects thereof favorable garded definitely linking as in those ignore plaintiff’s claim conspiracy, the facts a then all of contrary. It means dicate to the might be considered in his con- analyzing picture, takes surveys the whole court my duct in connection It therewith. is inferences facts into consideration purpose to discuss con- those matters plaintiff’s favor tending to therefrom cerning which there ap it seems me that considers other position, also may possibility be some that could reasona- mat as accepted must be pearing which bly interpreted be indicating that Mathe- law, whole matter weighs ter of wilfully furthering sius assisted in con- precepts legal background of against spiracy to and cheat Hollands. deceive viewed, so problem. If when "bearing on findings minds could make reasonable scrutiny Point 5 first is the to warrant in ac out cause action make would re- regard. It relates to Mathesius’ claims, sum plaintiff’s cordance with September ceipt of Rex letter of" Holland’s granted; not be mary judgment should 14 and the fact that it. he failed to answer hand, appears the court if it The first observation to is be made not make find could reasonable minds morals, ethics, inquiry here a cause of action establish ings would amenities, strictly or social but as Ma- summary judg plaintiff, then duty legal thesius’ whether there was proper. ment is violation thereof. be that would mat to the various attention Directing have been considerate to have- at an- least above, from to letter, but enumerated swered Mathesius was ters under Mathesius’ com indicating duty to legal do suggested no so.. Had he are elected plaintiffs: conspiracy any matter, defraud in a make statement plicity concerning the that most of the readily observed would have obliged speak it will been obviously truth,9 are reconcilable listed whole points absence of In part. the event fiduciary relationship, on his right conduct could si- remain upon plain trial, A purchaser the burden lent.10 obligation, under no .a *8 preponderance, by great tell his seller of prevail concerning tiffs . This cannot property.11 evidence. be value of latter’s weight of er Unless Tucker, Annotation, 2 Utah 2d 268 P. 10. 56 A.L.R. 8. Alvarado 432-438. 986, 988. 2d 11. Ibid. 860, 55 Am.Jur. 564. 23 Am.Jur. 3Í2 súspicion, The latter exhibited already Option has some basis to him an
one signed by either appear anything the Hollands there 'does not to be that Moreton could fact Ma- unnatural in the in the unusual or interest claims for $100,000, immediately to and also an Agreement with thesius went Owner- ship dealing, been instead of which recited that whom he had if the claims were sold or entering around him” and into leased on a “going tonnage $133,- effect basis for 333.33, requested by Rex Holland that each one-fourth, should arrangement take greater that if dealings realized, Hollands in their to assist the with amount was then the excess go Moreton. should to Moreton. Mathesius concerned as to the one Point number 6 is the made validity of these as between documents any plaintiffs gives me real con- parties, they provided an informational reasonably cern as to whether it could be basis for him to assume that the Hollands wilfully Mathesius found that assist- satisfied as their share plaintiffs. deceiving Moreton in was stated the letters thereafter fur- prepared agreement After had nished to him. showing and deed the co-own- In response to question Mathesius’ toas ers grantors reciting the full con- transaction, fairness of the Moreton transaction, sideration one at Moreton’s stated in substance that opinion in his request, Hollands, advising and without fair, right was both “right” Mathesius withdrew such documents and based on just mentioned, documents prepared separate papers. sets two (Option Agreement gave Moreton the excuse Mathesius that he and the Ownership) “fair” on the fact that join did warranting not want to title to kept he had the Hollands and interest, Murie “in very just Hollands’ title he had many feed” times past over the 20 years. patents obtained the for. It does seem that The record does not disclose that pretext there this was but which ties in with any basis in fact for the latter complaint statement. Rex Holland’s that Moreton was However, there misrepresenting facts them and no indication that Ma- suspicions raised Mathesius’ should have thesius then had reason know that matter, well have done so it was not Nevertheless, true. after con- presently as indicated Mathesius’ conduct ferring attorney, with his Heald, Mr. it was to be discussed. decided that there should bé a Ml dis- closure of all the1 facts to the Hollands
Arising knowledge of his out before the finally deal was closed. For circumstances mentioned above connec- purpose requested and 6 points tion numbered S Mathe- explanation. get Moreton for an statement sius went to in writing signed by the *9 Moreton mis- had said that tember 14th he transaction parties that all Hollands same, ton, per cents represented price the at 10 satisfied, the for completely were whereas, it claimed should have Hollands parties interested all that purpose, arranged Twenty-five per cents been 25 ton. cents the closing the together meet should actually paid per price the and the ton-was transaction. in the record is that this was evidence that made is argument Point 9: The price equal highest should there having Mathesius decided anyone in for iron ore to the area. The Hollands, facts to be full disclosure of mathematical, simplest calculation would that he purpose incompatible it is with per have that 25 cents ton x 1.55 shown not recite accepted letter did which $387,500, million tons calcu- totals which per ton. price price, nor the made, lation easily Rex Holland could that the contents From it reasoned this apparent as is from the contents of to Ma- chargeable of the letter itself are September letters 14th letter itself. These drawn, ; give artfully thesius that it is signed were any contact without direct fully advis- superficial appearance anyone Mathesius or associated with it fact care- Hollands, ing the company, supposed that so it cannot mat- vital these reference to fully avoids there decep- was persuasion undue or these contentions to those ters. Contra part tion on his in procuring them. Hollands, hav- after thoughts arise: Points and 11 alleged relate to con- about whether expressed apprehension cealment of facts from the Hollands at the pro- fair share they getting a meeting when the transaction was closed. letter, September signed 14th in the ceeds It is true that Mathesius seemed to be More- which of October letter general direction the proceeding, but them, containing presented to ton had the conduct of the meeting, even as de- tonnage “which we under- statement as to by Hollands, scribed does not indicate tons,” million at 1.55 you estimate stand any designed concealment Mathesius. us,” satisfactory to entirely “is Ignoring the exposition full of facts and may say, Moreton Mr. further, “needless opportunity questions, for claimed in said claims interest and sell offer defendants, disputed because this by the you agree price whatever Hollands, it still must be realized that * * * proceeds entire upon, Mathesius had seen the documents: More- * * property, course, his sole will, of ” Option purchase, ton’s the Agreement of import signed similar was letter Another Ownership,, letters, and the all signed by 20, 1948. November by them Hollands, indicating that the it is wanted significant to share of re- connection claims In was lettgrof $100,000;; Sep- Rex were entirely Holland’s member satisfied so meeting ours” not handled was concern it; no that it “is Hollands, indisputably that the In ref- clear it his share. gets what Moreton on.. going knew the full details of what stamps: the revenue affixing of erence to the to silence.. them so, Mathesius had warned duty do grantor’s were, right He assume No fault by Moreton. for them was done people ordinary intelligence, and because can be found ordinary pru they knew the facts which plaintiffs so advise failed to do *10 be- is to dence reveal to them.12 It would thereof, he had no as as to the amount had', kept in who mind that it was Moreton regard. legal responsibility in that them,, the for handling been transaction respect to the Speaking generally with improba It seem not Mathesius. does not discussed, claimed de- the just matters not designed that the letters so as ble were in the manner ficiency the letters and in purchase- reveal to Hollands the full to the handled, this obser- was meeting which the actually price, was. meeting nor that the circum- under usual made: vation is to be handled such a manner did stances, to do have had all Mathesius would it. But letters learn were admit of the to have been transaction would tedly prepared in and taken office Moreton’s duly executed bring deeds Moreton have sign. by him for the Hollands The meet to pay the consideration Hollands and the in Moreton’s office. ing was also held that, Beyond Mathesius would therefor. why they reason be- There was no should relationship with not be concerned looking as their and' to Mathesius adviser the co-owners. It dealings between They encouraged' had not been confidant. upon initiative the letters Mathesius’ such, upon to look Mathesius as and he bore- required meeting was set that the were fiduciary relationship to them. no up. His contention was done that all conformity purpose his stated with complicity The idea Mathesius’ in a of fully rings advised true parties should be conspiracy deceive the Hollands is be- conveyance acceptance of the because the the evidence Moreton .so clouded payment of their from Hollands and as transaction engineered get an un- handled check could have been conscionably large proportion of the total ways, of other number price for his one-fourth interest- unassailable transaction made a firm and For obvious and in the claims. understand- meeting. letters or any such without is an effort made to link able reasons Ma- undoubtedly regretted thesius, represents, now be that' companies is given is thereto, Color insist that letters be this transaction. did not Mathesius price Mathesius explicit belonged Moreton because more Sup., Holding Kahn, Corp. N.Y.S. 12. Grenlac tri- action of supporting the pic- Further surveys the If one the same club. signed is the fact that the Hollands court a al suspicion of through eyes ture having purpose of them these letters for connived with notion that he preconceived knowledge delivered to Columbia possible to create fabric it is pur- company for the negotiating upon conjecture which believe claims; Moreton’s interest in the chase in de- wilfully assisted Mathesius get least, they put that he was to it me But seems to the Hollands. ceiving share, it, “a little more” for his and that pre- indulge willing is if one was to consummate deal and conduct, Columbia some evi- sumption right until thereupon. act In reliance on state- is contrary definitely indicating dence ment in the that Hollands en- letters is shown, presumption satisfied, tirely behalf, Columbia out the full his indulged in his entitled to have price market for the esti- fair total the busi- activities are understandable as tonnage of ore. This mated works an es- carrying negotiations ness-like toppel agree, the Hollands.13 mining against I company argue, that if it plaintiffs were established claims, going the fair party was a it to a fraud paid, except precautions he did transaction, estoppel per- not invoke to assist could protect take to side However, my opinion .it.14 petrating refraining going over on the basis in that there no evidence for im- police by seeing that side to the transaction *11 estop- fraud plicating Columbia in and the fairly the each dealing sellers with were pel apply against would the Hollands. other. in affirming judgment. I concur the seems be observed that is also to that Mathesius’ acts somewhat anomalous McDONOUGH, J.,C. concurs in the writing requiring in in the of a statement opinion of by the court as the elucidated satisfied, the the Hollands were and CROCKETT, opinion of concurring J. surrounding the holding of circumstances benefit, WADE, should be used meeting a for their (dissenting part). in Justice charging Plaintiff, basis for him with a con- Holland, as a in Rex his own be- spiracy because not to defraud were as half and administrator will with the thoroughness father, out with the carried annexed of his G. Holland’s John estate, now indicates have been hindsight appeals summary judgment from a accomplish purpose. efficacious more dismissing as to corporate this action the C.J.S., Estoppel, 113, p. § 13. 31 Life Hancock Mut. Ins. 14. John Co. v. Markowitz, 1944, Cal.App.2d 388,
P.2d 899. summary judgment A is not sustained show- agree I cannot defendants. showing facts which convinces de- a mere as to ing sustains such dismissal as claimed the court that the are Company. Mining Iron fendant party. motion moving Under such defendant, Ar- Appellant contends try the facts nor determine court does attorney acting as E. thur while are, is concerned what appellant, father and agent any If there questions genuine of law.1 is title, Murie, perfecting William C. any material fact the court must issue as to patent arranging obtaining it against deny the mover and resolve mining in three sale of their interests judgment proper only “if motion. Such is claims, whereby plan scheme concocted a or depositions, pleadings, and admissions misled them he withheld information and affidavits, file, any, together with the if as to the amount received as genuine show there is no issue as thereby mining claims and price of such any party material the moving fact convey their interest them induced judgment is entitled to as a matter of accept a much smaller property and (Emphasis added.) showing- law.”2 purchase price portion of must is demonstrate that mover enti entitled to. He than property A judgment tled a matter of law. that the defendant Colum- contends further fact” is one which affects the “material herein, Company through Mining bia Iron parties. liabilities of the There rights or secretary, president and with full knowl- its “genuine issue material fact” as to scheme and all the facts sur- edge of such rights facts which affect the unless all deal, conspired, rounding acted conclusively parties are so liabilities actively participated concert slightest that there is not the shown doubt them, information withholding thereon,3 and in order to sustain such a $287,500 for his paying judgment such facts must show that in such claims interest undivided'one-fourth party entitled to a moving judgment $387,500; price of total aof out In deciding a matter of law. such a motion his one-fourth 'Moreton paying thus and the inferences all evidence to be drawn $33,333.33 against to therefrom, interest must be considered in light similar interest. party for a against them most favorable to the each whom Practice, Federal 2nd in Note Moore’s authorities cited 3.See Peck 1. See 6 *12 (2), (1), (10), Corp., Cir., 1948, 56.04 50.15 v. Ronrico 1 56.02 ham Ed.R. 171 Landy Silverman, 653; Cir., (8) therein (3) tlie cases discussed v. and F.2d 1 and 80, 82; 1951, F.2d Doehler 189 Metal. cited. and Procedure, States, Cir., Rule Furniture Co. v. United of Civil 2 2. Rules See Utah 1945, 130, 56(c). 149 F.2d 135.
317 judgment matters, flicts on in the evidence some and sought. Such judgment is many evidence there are serious conflicts as only if the granted be should reasonably that the inferences can drawn possibility precludes all reasonable facts, from the events claim.4 and occurrences. I could trial establish valid loser facts, believe is that if we view the events and judge’s function motion the On such occurrences, and the to di inferences to be drawn analogous determining whether therefrom, light in the verdict, most respects the evi favorable to but in some rect a plaintiff, the conclusion is for a sum irresistible that must be more conclusive dence reasonably facts could be found from the deprives the loser a trial mary judgment evidence support which would judgment usually is on the such decision made against the Columbia Iron Mining hearing court Com- record without written pany. seeing the witnesses and without or This production possible of all witnesses. The gist of a civil action conspiracy possibility remedy great drastic is a is the wrong done from the concerted ac time, but neither save time saving will persons tions of two more or in the ac justice unless where granted or further complishment scheme, aof known or design affirmatively appears that no rea there is it purpose. not necessary is that there be possibility that the loser could es sonable express agreement; is sufficient if mak a valid claim.5 The
tablish burden wrongful scheme, there be a design plan or seeking 'showing party is on the such accomplish purpose injure, damage judgment such for in the of such absence deprive another his property, and that showing convincing that such court parties all of the to such conspiracy know judgment are the should be de scheme, design purpose we must nied. So search the record to de actively participate in reasonably termine what facts work found in concert the evidence and if we conclude that accomplish with others to it. A mere tacit are sufficient appellants such facts to entitle understanding between conspirators judgment to recover must be reversed. sufficient if there knowledge of wrongful scheme and of the evidence as to occurred concerted Much what action to in conflict but there is' not are serious con- accomplish it.6 1, 8A, Authorities cited Note Phrases, See 6.See Volume Words Mfg. Co., Cir., 435, Conspiracy, pp. Rose 9 especially v. J.E. Bowers 367 - Dale 612, Temple 1945, Co., 615-610. 149 F.2d H. 69, v. Thomas 186 Tenn. 344, 353; Johnson, 208 Horton S.W.2d Practice, 338, 605, Federal 2nd 613, Moore’s Ed. 15 615; 192 Ga. S.E.2d 5. See (2) Valley and authorities cited in Farm Wag Lake Products 56.15 v. Milk p. Cir., 3 and 4. Driver’s Union Local
318 $133,333.33, keep in of together with one-fourth we must this case
To understand $133,333.33 paid by said shall be The de- sum of facts. mind some of the salient purchaser E. lawyer offic- the said Arthur More- E. Arthur fendant (Emphasis ton.” added.) Had Moreton City, experience Salt Lake with option exercised his or sold selling iron claims to mining * * * “on basis tonnage claims the Hol- Mining Company, met with Iron 1946, ore contained said claims” he would April early in of at lands and Murie of have been entitled to all City, the nec- and later he advanced Cedar $100,000, price paid in excess of essary legal funds and furnished services undisputed clear and did evidence is patent joint names to obtain a those are agreements neither so of no For three iron claims. such services mining supporting aid in claim that he was en- they conveyed and funds to him a one- purchase price paid to all the titled in ex- They fourth interest in such claims. also $100,000. cess of option gave him an the other three-fourths interest in such claims for
$100,000 long negotia- negotiations so as he “shall handled all of the tions for the sale of sale claims actively said of these claims Columbia. They He pending.” instructed the Hollands Murie executed an “Agreement orally Ownership” Hollands, of both letter in order Murie against they and Moreton “shall working henceforth avoid each other each own quote any prices. undivided one-fourth interest should mention or in and to each He the claims.” That drew all the letters agreement and documents fur- signed in connection property if said shall provides “that ther except sale disposed secretary those drawn sold, leased otherwise or of Columbia in excess which were after for a sum drawn con- tonnage basis on a purchase sulting him and adopted sug- $133,333.33, the amount gestions. The Hollands and receipts or otherwise Murie from lease con- price or claims in excess of in said agreed contained that he on ore sented should handle 436, 441; Loewe, Cir., 721, 725; Co. v. In Alaska S. S. 209 2 F. F.2d Brum Chattanooga Longshoremen’s Speedway v. ley Ass’n of Pu & Motor- ternational D.C.Wash., 964, 969; Co., 534, Sound, F. get 775, 236 138 Tenn. 189 S.W. Drome Browning, 322, Mo.App. 776; Mines, Browning 226 Kietz v. Gold Point 5 v. Wash. 868; 71, 74, 860, 224, Mulholland v. Wait P.2d 105 See 2d S.W.2d also 41 342; Union, Erwin, 365, Bal Dec. 101 Utah 13 Ohio v. State P. Local ers’ Ferretti, Sup., 668, 285, 308, ap 28 N.Y.S.2d discusses 2d v. lantine Rathford, City proves 671; v. 353 Mo. the above stated elements of Kansas 570, 574; conspiracy. Ohlendorf S.W.2d Ill.App. 537; Bennett, 241 Lawlor v. agreed for their three- arrange accept sale and for the negotiations interest, de- agreement’would fourths that such procedure and behalf in their all September, .that expire at the end of and testified Plaintiff claims thereof. tails signing agreement they the since had been to them disclose that Moreton did never advised that tons claims there was 3.5 million that was total received, property that ore offered which was or the amount which twenty-five total per until some cents ton amount did not know $775,- $875,000, Plaintiff which wo'uld net Moreton closed. years the deal after *14 was for a deal investment. He asked for until $700 after also testified that postponement them always to of the sale after No- represented until closed Moreton 1, 1948, price arrived vember purchase was and that Moreton noti- that the total tonnage canceled, fied that the sale was by figuring at the estimated expire, ton, which would per agreement allow the after only ten cents to 1.55 million at they purchase price could demand three-fourths of a total amount to right purchase price, requested $155,000, an imme- he claimed and that $100,000 diate in addition answer. excess of retain all in for payment interest
to one-fourth Mathesius gave never Rex an answer to ar- purchaser finding his services this letter but Moreton visited and read repre- sale, on such that ranging the letter to him. Moreton him showed entitled that he was they agreed sentations option to Agreement and the difference. retain to Ownership, and Mathesius that testified he that concluded Rex telling was not sale of this negotiations While truth. Mathesius told Moreton that before Rex pending, were property the deal was closed Mathesius must be Mathesius, corporation’s that wrote Holland satisfied a statement from them in writ- 14, 1948, September dated a letter president, that the other owners were then satis- the owners stating: That in substance whereby fied with the they deal re- placed them with had H claims & the M only $100,000 ceive for their three-fourths the United advised Moreton, who interest in the claims. Moreton testified purchas- interested Co. Steel States never told the Hollands and Murie postpone- He asked claims. ing such the amount which he was getting for this satisfactory more until sale ment sale dollars and cents and that Mathesi- the owners and between arrangements requested him that, never to tell us them He stated made. could Moreton he told them he claims but the tonnage believe that led them had Moreton 1.55 at estimated million tons at million tons of twen- 1.4 contained claims per cents ton. Moreton ty-five further tonnage they had based ore, that separate said to him that claims that undivided one-fourth interests ultimately $387,500; know the total them this wanted was arrived at property, price being paid for estimated 1.55 per million tons at 25 cents was fulfilled when ton. Originally claimed company and he submitted to deal was closed. Moreton one set of papers all four covering interests. company never considered by Mathe- After this letter was received offered to Moreton’s one-fourth answered, prepared not sius and interest without purchasing the other three- let- signed the Hollands and Murie fourths interests in the same transaction. offering ter to sell their interests in these On Moreton’s suggestion separate two sets Mining the Columbia Iron claims to Com- papers deal, were used in closing the pany, dated October stated one covering the Hollands’ Murie’s signers understand that sale interests and the other covering the More- patent awaiting issuance of the and that tons’ interest. He claimed that he made tonnage understand estimated suggestion prevent not to them from tons, million 1.55 submitted learning the purchase price total an offer sell their three-fourths inter- avoid warranting the title of three- entirely ests for “is cash which fourths interests conveyed by him. us,” satisfactory funds that being without This, plainly but a feeble excuse be- patent inci- pay secure the the costs cause it very was the title Moreton himself dental thereto asked Moreton “to se- just perfected; and furthermore it is patent, cure such and ex- at his sole cost *15 doubted that separate two papers sets of pense in return for an interest. Needless were necessary for purpose. such By us- say, his may Mr. Moreton sell offer and ing separate two papers sets of plain- the price interest in said claims for whatever tiffs prevented * * * could best be from learn- you and he agree upon,. and ing total price paid proceeds the entire therefrom will of course ”* * * property. question be his sole There property, sepa- A is no but that rate offer to sell bearing the same date Moreton accomplished could not have letter prepared by was Moreton and purpose in deceiving the Hollands with- signed by company. them sent and help out the of Mathesius. The record also Another letter of import pre- similar was companies discloses that the defendant paid pared by by signed and the Hol- large Moreton two other sums mining lands and company sent to the bearing date claims, personally one in which he received 20, of November $250,000, $50,000 and another transaction of $22,000 personally which Moreton received
The sale of these three claims was nego- tiated as one transaction to transfer all four give which facts weight further to the like- complete by actively conniv- disclosure was made Mathesius lihood that Mathesius was reading aloud a transmittal letter of assisting Moreton. with and $287,- himself to Moreton stated that which parties all the For closing of the deal in- being paid was the Moretons’ Decem on met office together in Moreton’s terest. It is pres- also claimed that in their Heald, 20, ber and 1948. Mathesius ence stamps revenue each were affixed to president, represented Co secretary, and deed which indicated the difference in the lumbia, the two sets they produced consideration for each of them. prepared. papers they previously which had testimony mother, of Rex Holland and his testi each Heald Mathesius and present who was also signed the Hol- Mathesius meeting fied prior to this papers, positive lands Murie papers none stated since heard no letter or other documents signed to be signed had been read at that time or at all and observed contained and Murie Hollands no stamps revenue attached to total statement which disclosed facts, deeds. dispute This is the main as to price amount which of the claims or the events and parties occurrences between the price per receive, or the Moreton was to appeal. this Certainly dispute is ton of ore which the genuine. determined, that called this situation We turn to consider the Co- acts complete eventually of all disclosure lumbia Iron Mining Company by it However, them. all de these facts to is claimed that it actively, participated in all testimony that after fendants’ shows acted concert with Moreton mislead- in Moreton’s parties were assembled ing and defrauding plaintiff. office on December first con completely closed summated and the deal We begin with Rex Holland’s letter to Murie, with the the deal was Hollands and September 14, dated 1948, and them, papers stated to read some of events which followed. Therein Rex accused Moreton of them, misleading the stat and mis- executed and delivered representing facts, particularly with Deed, utory Warranty check for reference to the estimated tonnage them, delivered to and in claims, thereby inducing them to agree “exuberance” Murie took check money accept $100,000 the most saying, “that is waving for their interests. Part had in our life. We are of his we have ever statements about the estimated ton- obviously entirely nage this transaction.” satisfied with inaccurate. He further *16 parties agreement all remained the clos stated that their Then the with Moreton expire deal Moretons would at the with the end September, of of that claim that this this was was j:hen conditional on the suggesting 2d - 21 Utah Rex was not by More- because he concluded negotiations termination of active telling truth contract He asked about property. ton for of the a sale September.7 canceling expiring Moreton the end of Moreton to to Mathesius write letter; copy of him the sale and send read it letter and Mathesius took Rex’s way suggested in that Moreton, the undated him who showed able to obtain three-fourths “Agreement “Option” expressed the property price of proposal his Ownership” support of in letter This hope answer. for an immediate in purchase price excess that all the joint undivided from of an an owner him. distributed to from sale be as Mathesius property which interest in the deposition In his Mathesius testified Mining Com- president Iron of Columbia his “Moreton stated substance he was purchase, pany negotiating this, opinion right he and fair was both property writing about not an intermeddler the above docu- right based on He was business. his which was none of ments, that he the fair on the fact had facts, his obviously some mistaken as to many 'in kept the Murie feed’ Hollands and in- seeking he was clearly he indicated twenty years.” Mathe- times the last over prop- others, made a formation as to fully sanction this statement sius seemed to help against him osition that Mathesius it three times in the course of for he read he stated obtaining what Moreton in deposition previously pre- *17 kept judicial they that he had sius and Heald extra statement admitted that after re- many 16, 1948, “in feed times ceived the and Murie offer of October and the Hollands twenty years,” accompanying he stated during the letter and last also the confirma- tory 20, 1948, they letter he met Rex Holland for of November therein that no- he became ticed that neither April, in when of these first time instruments nor property other instrument they in this and his father indicated that interested possession only years information, were ten before. Mathesius of that about and after deposition studying discussing they made his after this situation conclud- transcript deposi- complete ed that this of Moreton and Heald’s called disclosure the original and with extensive notes before him. owners of tions all of the details transaction, every of this repeat argument including He took care to the amount which the support received which Moreton advanced Moretons at the time closing of the position, many ways deal. and in this This claim they accomplished by definitely anxiety reading he indicated his to see some letters papers after all the involving original Moreton succeed. owners signed had been paid check Apparently to them. these instruments met during the con- Mathesius testified requirements all of the which Mathesius Rex’s letter to versation when read specified. specifications These seem to Moreton, he not want stated that did deliberately have been made and to have purchase and that before the a law suit approved by been Mathesius and Heald posi- negotiations were he wanted closed after the offer and letters had been re- proof writing original that the own- tive ceived, which suggests intentional- with the ers were satisfied conditions ly require did not a disclosure to the orig- whereby only $100,000, they were to receive inal owners price total they did not care how much and that amount to be received the Moretons require proof He did not got. Moreton or of information from which this amount they knew writing or otherwise how could be calculated. purchase price was the total or the much receiving. which Moreton was amount After the terms of the sale agreed were Hollands and Murie upon, letters from the which company sent pro- Moreton its fully up complied posed Moreton drawn papers were draft of the to close the deal. requirements, proposal with all of failed to In this one papers set of original owners that the knew the drawn require indicate which would the signature price of the claims- or the original of both the total owners and of the received, Moretons, thereby 'there amount the original owners writing evidence would have opportunity no indicates inspect knowledge. Both sign had that Mathe- instruments which would disclose the More- interest in the Moretons. fourths the claims. If the paid com- amount pany actively suggesting participated proposals intentionally these returned ton drawn, cover- withholding original one papers be owners two sets company and the full amount of the the deal between and the covering Moretons, deal and the other amount and if the Moretons the com- original thereby owners original owners were between induced to to avoid $100,000, he wanted pany, claiming receiving only consent guilty title of the inter- thereby warranting defraud, conspiring liable *18 company The resulting Mathesius, the owners. the original damages. of ests making it un- suggestion, adopted dealing this without could around have inspect necessary original owners answered Rex given Holland’s letter and the which recited total sign information; documents him and this have could re- paid price quired the amount purchase and Moreton to written show state- and Both Mathesius signed by they the Moretons. ments the that knew owners this was that an unusual the Heald admitted total amount of the the amount to be the they received Moretons although procedure that were they and that were satisfied with such ar- they question did not claim pressed on that ; he rangements only could have drawn one similar transaction in to know of other papers set in accordance with his own company was the involved. This original proposal which would have dis- is with and transaction consistent lends closed this information original to the own- appellant’s support to contention that this they ers and which would have had to read intentionally being with- information many and sign. ways There are in owners, original held from would have brought could this informa- reasonably support finding to that effect. tion to their attention in a manner which dispute could and which would undisputed pur- the company is given ample opportunity them to de- these chased three claims four differ- liberately accept decide whether to or re- owning a ent owners each one-fourth un- ject proposition. this His failure to avail interest, joint divided deal was any of himself of these means is reasonably transaction negotiated one and the com- susceptible of the construction that he in- pany never considered purchasing the tentionally avoided disclosing this informa- original or the Moretons’ Interest owners’ tion them. purchasing them, interests without all of paid company dispute and that the Moretons is no There that at the time when only $287,500, who owned one-fourth payment in- was made to the Hollands and claims, only $100,000 in terest to Murie and deal closed as far as they owners, concerned, original who owned three- were no one had told them this their sume fact in favor because there tire amount to them mentioned testimony, a direct is conflict and on price or the amount total this claims motion we must take the facts in the to receive. were Moretons light appellant. tonnage most favorable to the the estimated Also them he had told keep in twenty-five we must mind that figured according at estimate and that this respondent’s evidence, own arriving reading at the this used per ton was cents stamps plaintiff affixing claims the revenue were done price, but aft- total price but er the Holland-Murie tell them this deal was closed and did he never paid ten had been figured it was a state represented excitement, expressed Moreton and Mathe- and as Heald Both it— per ton. cents prices many great exuberation. Under testimony mention such circum- in their sius expected stances it could not be figures, so Moreton’s nor those cal- between ore prices reading culated that everyone going knew of a letter not claim testimony them pur- addressed to this which did not not valid. ore presents port This concern them bring conflict. in direct question pur- which for the attention the amount which being paid fact issue genuine to the Moretons. Under such motion must assumed circumstances pose of determining wheth- it would be reasonable for the plaintiff trier favor judgment reading, any, to find if gave entitled to a respondents are them er knowledge neither nor notice of the amount of law. matter Moretons. meeting at that at Respondents claim *19 foregoing the From facts I conclude December that office on Moreton’s closed, Holland- it would be the reasonable to after find that the Co- the deal was when Mining Iron Company and the lumbia signed conspired been papers had all Murie in the with Moreton to withhold to them from Hol- $100,000 delivered the check lands and Murie information to the More- sale as the closing disclosing the of course a to all assembled tons, purchase read price amount of the total of this in which to of transmittal letter the property paid amount be to the to the Moretons was paid to be the amount to Moretons, intending thereby to induce them stamps revenue recited, thereafter and that accept payment in full for their to interests two deeds indi- were attached $100,000. It would not the sum of be unrea- which was consideration the conclude that cated sonable to furtherance of conspiracy Mathesius Holland and his such refused to an- Both Rex each of them. letter September 14, Holland’s of deny positively any that heard Rex swer mother required proof written 1948; he stamps revenue that read or saw that letter such original willing accept owners Again we must as- the the deeds. to to affixed price Company judg- $100,000 purchase Mining Iron is entitled to as their share of the a require proof ment as matter of law. not such that did purchase price knew the total or the amount agree I Mr. with Crockett that Justice receive, no such the were to Moretons inquiry strictly duty the legal as to a of proof was knew these ever this re- Mathesius to disclose evidence and proof produced; the lack of quires a mere more than moral or ethical Mathesius, stated recognized by who duty. agree he legal- I also can be held complete for a this situation called ly responsible conspiracy to overreach eventually. these facts disclosure of plaintiffs only if there was wrongful conclude that would also be reasonable to him scheme known to to withhold in- this facts to disclosing in order to avoid those formation and in furtherance thereof he owners, the divided original the wilfully or omitted did to do some act sets, papers covering one transfer into two have would otherwise not done original of the interests of sale However, if or omitted to do. he knew of the interests covering owners and clear, strictly scheme had a legal Moretons, the final that on clos- duty conspire to with Moreton nor of ing of this deal no eventual disclosure change his course order carry out made the Hollands these facts was that scheme. that it would also be rea- Murie. I think to find from evidence sonable Co- I agree also if there were a trial knew that this in- through its officers lumbia plaintiffs of this issue withheld from the persuading burden of fact finder formation preponderance them to probability to induce in order original owners $100,000 equally share where all the circumstances are accept agree guilt Moreton was not consistent with as with price, that innocence no showing However, in such can be made all of entitled application this rule no option pur- has to this case for his under excess showing there was no ownership without actions of agreement chase equally selling Mathesius were option or consistent exercising his either whereby guilt, the mere fact that innocence some contract under claims might be the number actions considered of his price would consistent falls claims, innocence far short of and that with the re- realized tons showing in that rule. The quired into order rule re- entered scheme manifest quires that must be meeting those necessity him ac- avoid equally as consistent claim all over tions inno- in order requirements *20 facts, guilt and under then there cence as circumstances are such If $100,000. be it would unreasonable to respondent Columbia where hold showing that nois plaintiffs he applied that which usually information is rule otherwise. Such they claims later made. The doubtful only evidence to where the cases question issues on this is whether Mathe- is between speed of motor vehicle rate of a agreed tacitly sius with Moreton either that specified holds this figures court plaintiffs otherwise not to disclose to preponderance probability shows no money amount of was receiving. Moreton against rates one of such between point this On circumstances seem applied cases where al- It is other. also against most conclusive It points equally Mathesius. is circumstantial evidence that agreement clear without such an both perpetrator persons as to two Moreton and knew that there indicate one does not crime but no plaintiffs, chance to mislead the and to cases persons guilty, where such every move that Mathesius made thereafter that either expert witness indicates one an clearly agreement that such equally probable. indicates theories two strictly. been made was being followed do with case nothing to where can have letter, He failed to answer Rex’s he re- nothing case there is in the as in this evi- quired Moreton that furnish statement proposi- that the dence which indicates two plaintiffs they from the only that equally consistent with the are tions willing accept without evidence. showing that knew amount which Moreton was receiving. He noticed and he Mathesius admits that Here received discussed with Heald that these statements claiming from Rex Holland letter that failed disclose that had knowledge misrepresenting the facts Moreton amount, of such he concedes that he had them, he to answer that failed letter duty a clear to make such a disclosure and it to Moreton who showed him but took making still without disclosure, them, between there- contracts suggestion, Moreton’s on a ridiculous get upon required Moreton written state- pretext, made two papers sets of one Hollands and Murie from the ments signed Moretons accept $100,000 and the willing to in full they were signed the Hollands claims, interests in the for their payment Muries, right legal which fits both a asserted Moreton’s amount; over right all scheme for withholding moral this information, required letters were received then closed the after deal with the Hollands that none of Heald noticed those and Muries without saying he and one word to plaintiffs indicated knew them of the amount which statements Moreton was Moreton was to receive to receive. This I the amount conclude would clearly justify decided this deal and an inference that Mathesius had complete disclosure to entered into such called conspiracy and was *21 actively changing his course in accordance
therewith..
I would therefore reverse case and proceed the trial
direct court with the
action as to the Columbia Iron Mining
Company.
WORTHEN, J., participate does not
herein.
Hance A. TAYLOR and G.
wife, Parley Taylor, Plaintiffs P. Appellants, corporation, COUNTY, municipal
WEBER
Lyman Hess, Brown, Elmer Car- Arthur
ver, Graham, J. Pierce Ellis Griffin Respond- Nielsen,
Golden Defendants
ents.
No. 8343.
Supreme Court of Utah.
Feb. notes
Notes
his notes from Although original owners. rights of the reference, pared by him for fails not proposition his agree that we explain how those instruments could he was taste, seem that it would good right that he receive more than make it stating Mathesius’ answer entitled to an eight times much from his one-fourth in- information him the position giving Murie the Hollands and did for terest as by his own which he lacked. option pur- exercising without theirs this letter be- answer testimony refused to property selling the on the basis chase reputation and because ore a bad the amount of realized from the Rex cause noteworthy around also go claims. is More- intend he did transaction, deposition does not corroborate this in that ton’s connection following para- “pending” is not clause conclusion 7. How he reached please speci- undated, graph send Option will me du- : “You apparent advising copy period plicate of the letter Mr. “option of twelve fying for a long hereof, (and refusal so date months 1st, property 1948 so until Nov. that he More- Arthur E. said thereafter agreement future between us negotiations in a for the sale cannot shall ton actively pend- under others, sale the clause insert claims said ” pending.’ agreement recognizes ‘still old Rex ing).” letter In