*1 v. McCOLLUM CLOTHIER. (241 468.)
No. 7721. Decided March P. 2d *2 J., Labor, Implied recovery See contract, 71 C. Work and sec. 119. upon: Jur., Contracts, 12 Am. sec. 6. Fairclough, J. Iverson, Grant Jack City, for Salt Lake appellant. Clyde Stine, Patterson,
Richard L. C. Ogden, respond- for ent.
CEOCKETT, Justice. judgment quantum Plaintiff recovered a meruit securing expenses rendered and travel incurred services buyers machinery equipment on certain bidders which was benefit at a sheriff’s sale sold for defendant’s mortgage. after he had foreclosed grounds:
Defendant on two main assails First, it; second, evidence does not sustain presenting all evidence was misled into not of his going when the trial court first indicated he was changed rule for the mind. defendant but later having- point: prevailed, As to the first The he is entitled t0' the benefit of the evidence viewed light him, together in the most favorable to *3 every fairly inference and intendment and reason ably arising therefrom. express
Plaintiff сontract but makes no contention for an asserts that he defendant under rendered services for the obligated im- such circumstances that defendant under plied pay maintains to the contract to for them. Defendant officious, contrary, plaintiff’s and activities were implied promise express that defend- without either or pay ant would therefore. follows: De-
The material facts be summarized as mortgage fendant, Clothier, upon real Dr. held a certain property, machinery equipment and of the Kiest Beet Company Hooper, Utah, company Harvester of which went May, bankruptcy in Defendant instituted fore- into judgment. proceedings procured Before the closure and acting had, J. Iverson who was sheriff’s sale was Grant attorney ,talked in defendant to the trustee bankruptcy plaintiff who had been about McCоllum assisting during bankruptcy in the time she trustee property helping in in and had been control equipment. machinery Upon and learn- sale of some of the regard, inquired ing plaintiff’s in he about the work plaintiff’s and where of the trustee as trustworthiness found; plaintiff. At re- then he could be contacted the Mr. quest, premises went and there met to the McGlone, Idaho at- Iverson and Henrietta Dr. Clothier’s checking inventorying torney. and Plaintiff aidеd in property. with them the fact He also discussed persons buying it. told had interested in He was some buyers for up prospective Mr. to continue to line Iverson previously machinery keep talked those he had place. Plaintiff’s take informed as to when the sale would given key premises was evidence is further that a to the caretaker, immediately him he over to the which turned Floyd premises for Simpson, opened Mr. who thereafter equip- prospect to show whenever he had a buyers to; in- actively seek for ment continued to he purchasing machinery; that he made several terested Idaho, direct trips City Pocatello, either to Salt Lake agent’s request, response to the or his defendant’s the work necessary to completion matters the successful doing for defendant. undisputed It is that he talked and reports made to both Mr. Iverson and Dr. concerning Clothier his activities al- though the exact substance of the conversations is con- Thus, troverted. both the defendant attorney and his agent plaintiff’s were aware lining up efforts buyers purpose securing higher prices for this equipment which would be for the benefit of the defendant. plaintiff’s The fact is that the work did react to the benefit *4 defendant; of the some buyers of the at the sale were people plaintiff whom had contacted and interested in the property; they prepared were pay to more than the inven- tory prices machinery for the and the defendant realized money more than had anticipated been from the sale. question The moment, then, toas the author ization of applicable this work. The rule to the situ ation is contained in the Agency, Restatement of
315 2, 441; Yol. Sec. “Except relationship parties, triviality where the of the
services, parties agreed or other circumstances indicate that have otherwise, requests permits is inferred that one who or another to perform agent promises services him pay as his for them.”
See In re Estate, also Stoll’s 682, 345, 188 Ore. 214 P. 595; P. 2d Brunger, Fancher App. 727, v. 94 Cal. 2d 633; 211 P. 2d Stevens, Miller 626, v. 224 Mich. 195 N. 481;W. City, Gleason v. Salt Lake 94 Utah P. 2d 1225; 58 512; Am. Labor, 4, p. Jur. Work & Sec. 17 C. J. S., Contracts, 4, p. seq. 317 et § appreciated
It is applied rule this should not be bind implied one under merely permits contract who serv him, ices to be accept another, rendered benefits from under such may reasonably circumstances they given assume gratuitously. are The law should require everyone keep guard against such possibilities by warning persons offering services that no pay expected. is to is, therеfore, be It essential court should imposing obligations exercise caution in implied contract, express contract, as contrasted to where actually agreed have defined and to the terms they by. are to be found mind, With such caution test for apply evidence, the court to was: all Under were the circumstances such that the could reason ably paid assume he was to be and that the defendant reasonably should expected pay háve for such services. Here, working the fact that previous had been ly capacity, trustee a similar for which he had paid, coupled been request with the made the defendant’s attorney agent work, knowledge to continue the and the being done, defendant himself that the work was are all factors which the trial could take into considera applying tion in the abоve rule. conclude that We the evi support findings dence is sufficient these of the court that there was an contract to for the reasonable implied pay plaintiff’s value of the services. *5 question presented defendant’s
A somewhat unusual judgment. upon The trial was held on second attack the March of the evidence At conclusion had failed stated that it was his findings, Accordingly, proposed to make a case. conclusions judgment reflecting prepared were this decision However, were counsel for the defendant. before these signed, had concluded that the court advised that he counsel he to an error and that was entitled hearing award. Both counsel a further before attended April 16, 1951, court on at which time the court reversed position former and told would rule for them he plaintiff. that he Defendant’s indicated counsel thought correctly. testimony the court had not recalled the agreement court, part Pursuant of plaintiff’s testimony excerpted use of the for the judgment plaintiff. court. He for the thereafter entered a present that the statements contention is The defendant’s thought judgment be Judge should Hendricks present the he did not misled him so that for the defendant caretaker, Floyd Simpson, which he testimony controlling in The oc- might the cаse. have been thinks testimony fol- Simpson’s was as respect currence lows:
Mr. Iverson: necessary you that we have your feel it Honor unless “We rest testimony Floyd out at who was caretaker of Mr. plant.”
The Court: testimony necessary go get his at his “I don’t think it out and home.” hearing
At the later after court had indicated that following- plaintiff, would enter : occurred
Mr. Iverson: *6 court, please “If I that it think evidence is he [McCollum] keys. adduсed, that I if did not The evidence would have hold suggested your recall at the of the case I that Honor will conclusion testimony the matter be continued I could take the of the care- until building, your you taker of the at which time Honor indicated that testimony.” not to his did care take The Court: you put on, if want “Well still that evidence we then will con-
tinue it until then.” Mr. Iverson: ** difficulty
“The meantime, is that the man has died in the discloses, So far the record the above matter con- cerning keys is the indication defendant’s counsel made to the testimony trial court as to the he would have Simpson. adduced from Plaintiff however never did con- tend personally keys, apparent held the and it is from subsequent holding the court’s statement keys was not the basis his decision but the facts that plaintiff people, continued to contact them show ma- chinery, premises, take them to the and that such work suggestion knowledge done at the and with the agent. defendant and his
Defendant Simpson now contends that would have testi- fied plant took no one between the selling time machinery he finished for the trustee and the time possession using when plant certain purposes permission facilities for own defendant, general which would period cover the plaintiff’s employment by claimed the defendant. This would havе testimony been direct plaintiff’s conflict with that he had on several occasions contacted and open premises had him machinery so that he could show equipment prospective purchares. undoubtedly express of the trial court to
It was unwise concerning be- the determination of the issues an thoroughly analyzed at the evidence arrived fore he had may have counsel and final conclusion. It misled a definite presenting which him from other evidence dissuaded arriving helpful proved at the solution would have controversy. However, responsibility of counsel satisfactory court, case and not the to decide whether viewpoint. He not has been made from should counsel’s asking responsibility seek to shift this evidence, and if the wants to hear additional goes into say misled adverse to him be heard to that hе was presenting fair to state his evidence. It is nothing pre- prevent the court did the defendant from *7 senting testimony had desired this at the trial so subsequent hearing and at the to continue he offered testimony. taking Simpson’s purpose matter of Simp- That The fact that was all he could do at that time. neither son meanwhile for which had died is a misfortune the court nor the can be blamed. Harrison
Counsel for defendant to the case of cites us authority sup- Harrison, 572, v. an 48 Kan. 29 P. porting having that, been misled his view of this case failing evidence, put he is now the court into on all his distinguishable entitled to a reversal. case is That There, respects several from the one. instant presenta- initiative, interrupted defendant’s its own ready to decide the tion of evidence and he was stated that defendant; not think additional case for the that he did any- testimony would hear would affect decision but his To thing already offered. from that of a different nature proceeded might have well censure to counsel have risked circumstances, court held the court. Under those heavily in favor preponderated that where the evidence against him, defendant, and the decision was not mislead him into remarks of the court had tended to producing prevented him from and had thus his evidence having But, a fair trial. here we are not concerned with a might situation where a initiated act which actively mislead counsel. important
Another difference is that in the Harrison ease the matter was a new trial that all so remanded of presented, presumably evidence could be witness, witnesses, testify who have would been called to in the trial, first trial whereas, could be called in the new present сase, gone testimony is for- ever because steps he is deceased and no were ever taken perpetuate testimony. plaintiff’s his Since the evidence is judgment, sufficient to sustain the it is clear that we could not a enter “no cause of action.” If the reversed, case were it could a be for new trial. There- fore, we are faced with the anomalous situation the de- requesting fendant upon a new trial evidence which would apparently produced be the same as at the first trial.
The Simpson’s testimony fact presented was not is not blamable on imputable the court and nothing who did to mislead the defendant with respect presentation evidence. The undergo required should not be a second trial on the merely same evidence because de present fendant part elected not to of his evidence. This is even more so when the additional evidence would not be available for another trial and the result that could be accomplished give would be to the defendant ad *8 vantage having judge pass another on the same evi requesting dence. In basis, the new trial on that the de fendant tacitly suggesting recognize is that we his conten judge might tion differently that another find on the same evidence. Wherе the judgment, evidence sustains the it arbitrary would be an invasion of prero the trial court’s gatives grant to reverse the case a new trial for purpose. such
320 changed en mind and the trial court his
The fact that orally judgment contrary announced to tered a submitted, cannot decision at the time case was only over-turning judgment. The be the basis in given judgment the one entered can effect is be accordance with law. * “* * judge any re- expressions can in of the no antecedent conclusion, power to declare his final strict his absolute (findings by law, wit, filing by his ‘decision’ authorized
manner
* *
law)
Hooper,
Phillips
43 Cal.
conclusions of
v.
of fact and
22,
App.
467,
2d
2d
111 P.
opinion by
court inconsistent
Oral statements of
the trial
findings
ultimately rendered do
with the
and conclusions
v.
Katz,
judgment.
App. 2d
54 Cal.
not affect the final
Lord
643,
v.
Casey,
363,
Fisk
119
Judgment affirmed. Costs to respondent. McDONOUGH, JJ., concur. WADE result). WOLFE, (concurring Chief Justice holding competent evidence in the that there is I concur by support judgment; statement that a judgment preliminary filed him that favors an one of the is utterance leans toward supported judgment; since the actual pur- remanded for the case cannot now be evidence the ascertaining determine another would pose what hold; not undo what that reversal could or how he would untimely and unfortunate done because has been witness. of a material death case, appears me
Speaking on the merits jurisdiction with an saddled this find himself one pay for his services on implied contract agent and an *9 might agent putative It would seem that slim evidence. responsibility certain that he was an to make have some us agent All of are the services. before undertook seeming volunteer a life with instances where familiar in ingratiates of another to himself into confidence say I cannot under be later revealed a But as self-seeker. CROCKETT, evidence, by that as related Mr. Justice there not in this case the relation principal agent Mr. and that under between Dr. Collum Clothier agential relationship plaintiff did such inferred assuming defendant, Iverson, perform Mr. services for attorney defendant, authority to initiate such had relationship It would between and defendant. beginning, had, at the have all doubt obviated quantum a or ascertained whether he on commission agential all. He have meruit or on an basis at basis certainty overtures called for such realized that for as ended chance to recover his services would have gamblе agent putative preferred to which take therefore, am, paying I proved to have been a one. events that. with the statement accord against guard require everyone keep on “The law should not gratui- given possibilities possibility the services were such [the tously contingency paid to be or that the were services warning persons their on offering success and so measured] basis expected.” pay is that no to be services that, And also the statement is, therefore, “It essential the court should exercise caution imposing obligations implied contract, contrasted to ex- agreed
press contract, actually where have defined and they by.” the terms are to be bound My appears comment on this wise statement is it merely paid lip me that it our courts have service ignored altogether. еasy It too in this state for one surprisingly implied promisor find himself a under an contract. *10 phase the second case:
As to agree express I that it was and for is unwise a court to an as to on the his conclusion before he has issues “analyzed the evidence and at definite arrived a and final expressions conclusion” he clear that unless makes it his only. course, play are tentative Of circumstances an im- portant part any judge closеly in rule. A wise works with both counsel the conduct the And of case. counsel try usually should and do the court to the cooperate trying my expeditiously wisely. end of the case and From experience bench, on the think trial I that there are times judge may when justifiably proceed- take a hand in the ings non-jury jury, in a case or in the absence of and timely indicate his doubts and even dissatisfaction with the judge why evidence. I see nо reason a trial should be little more than part furniture and with little perhaps adornment value at that. why times, proper
Nor do I see counsel should at especially concluded, inquire before case of the court as to whether he is in doubt or unsatisfied of as to phase course, presumes case. Of judicial this that the court is and cooperative counsel are and that both court and harmoniously working together counsel are for the expedi- justice tion of or at least for a fair of outcome the case. case, In suggestion this I think that counsel’s that no further presented evidence would be unless court de- Simpson sired to hear spirit coopera- advanced a of tion purpose eliciting and not for the of an utterance from mind; the court as to response his state of also that by suggestion the court to the was well meant but unwise hardly necessary and response suggestion. to the A re- mark, any, by judge expressed should have a tenta- tive doubt as' to case made but warned yet testimony counsel that he had to examine the whole guided and calling that the latter should be as to taking deposition purely (counsel’s) judgment. his his However, apprised Simpson’s impaired if the court was condition, justi- state health and weakened have trying testifying. fied to save him strain So depends much points on the I circumstances. think this case up counsel, my lessons for both court and wherefore rather First, extended observation: counsel cooperate harmoniously expedition Second, in the of trials. judicial requires conduct make no un- timely pronouncements as state of mind in refer- to the his cooperation except еnce on conclusions issues enlightenment seemingly need further the facts require divulge him to his tentative conclusions *11 only warning they with a that that are tentative so counsel not Third, only are to be misled. that counsel seek an in- dication the court’s tentative state of mind a bona attempt expedite only fide the trial with the knowledge any response that elicited from the court can- be victory taken as an assurance of or defeat and that interlocutory but an from utterance the bench. opinion, taking
It has seemed to me main even that the admonitionary judge, into account its caution to the over- attorney the emphasized responsibility his hav- ing judge invited quite him. mislead I do not see light. it in that response. The had control of his own aside, anAs be it should noted that Mr. Iverson’s allusion having Simpson’s key to Mr. express was meant not to thought would, called, Mr. testify that Simpson having key, symbolic as but all the facts Mr. Simpson having key. knew because of his That recognizes main that this evidence opinion would have been appears valuable to the defendant from the statement that Simpson “Defendant now contends would have testified that plant” took no one to the working when claimed to be course, for defendant. Of Simpson mere key fact had the wоuld not have naturally into Mr. Iverson’s be read helped. would What was that suggestion Simpson’s deposition be obtained brought plant be- to the had knew who building gain without to the one could access cause no key, be would key Simpson, he had the and that because activ- or lack of testify activities to' some of the able to might made might not have plaintiff. This ities of which in the amount some difference by judge from hiked $250 unrevealed reason for some procured transcript been had after the $652.80 defendant. event intervenes where some in a like this
It is case misleading irre- to be to his of counsel which causes damage flow from parable harm which when the full dramatically untimely mani- made the court’s utterance is death, how it Simpson’s I do not see to Mr. fest. But due can be reversal. remedied having himself, par- J., disqualified did not
HENRIOD, ticipate. et al. et al. v.
HJORTH WHITTENBURG (241 907.) No. 7711. Decided March P. 2d