*1 failure to state a claim under the statute. argue Plaintiffs this Court may, We apart statute, affirm. from the order partition pursuant equity powers. 78-39-1 states as follows: Section That issue was referred to opin- in various When several cotenants hold and are in ions both the first decision and the deci- possession property joint of real ten- on rehearing sion in Larsen v. Daynes.5 common, ants or tenants which one issue, however, The was not squarely or more of them have an estate of inheri- presented, and a majority of the Court did tance, lives, years, or for life or or for not indicate that equity would provide a may brought by action be one or more of remedy partition in addition to that persons partition such for a thereof ac- provided by the statute. No facts have cording respective rights to the of the alleged been complaint in this action persons therein, interested and for a sale which are sufficient to invoke the equity thereof, property part of such or a if it powers Court, of this and the matter has appears partition that a cannot be made not been briefed. We therefore decline to great prejudice without to the owners. pass on the issue of whether Section 78- This Court has not heretofore directly provides 39-1 remedy exclusive par- addressed the issue whether life tenant tition of interests in real property. joins with who a co-tenant in the remainder respondent. Costs to right fee interest partition has sale under the statute. CROCKETT, J, MAUGHAN, C. This Court has earlier stated that “[par- HALL, JJ., WILKINS concur. statutory tition in this state is a action. right partition and the relief that can prescribed be administered are [by
fixed Section 104-58-1 statute]. [re-en- provides
acted as Section that an 78-39-1] partition may brought
action in by one against joint
co-tenant tenant or tenant in common. It does not lie against oth- ers.” HOMES, INC., RANCH It is clear under the statute that Respondent, tenant life himself does not have a right to force a partition sale lieu of since GREATER PARK CITY CORPORA- co-tenancy there is no in the life estate.3 TION, Appellant. Defendant Nor can one of the vested remaindermen compel posses- such a sale since there is no No. 15467. sory interest in the vested remainderman.4 Supreme Court of Utah. changed by The result is not one of the possession co-tenants who is not in joining 13, March in a with a posses suit life tenant who is in plaintiffs, sion. The plain under the mean statute,
ing of the do not state a claim
which relief can
granted.
305,
Daynes,
308,
Gaier,
2. Larsen v.
118,
102 Utah
4. See Eberle v.
89 Ohio
HALL, Justice: appeals Defendant from judgment re- it to quiring respond damages for breach of an agreement.
The basic pertaining facts to the option *3 By are not in dispute. the terms of the agreement, plaintiff paid $10,000 defendant a option seven-month to purchase for the sum of some 30 acres of land in City, Park County, Summit Utah. In the exercised, option event the was defendant install, then installed, was to or cause to paved roadway utility and various lines to boundary optioned of property. exercised a timely manner, but thereafter the defendant repu- the agreement diated install road and facilities, the other all of prompted which the initiation of this proceeding. This case has been tried twice. The first jury trial resulted in a verdict favor of plaintiff designated for sums as expendi- tures made in upon reliance and profits. for lost business For reasons not record, discernible from the the trial judge subsequently granted defendant’s motion for a new trial. court,
The second trial was to the sitting outset, a jury. without At the the judge ruled, law, matter that lost business profits proper was not a measure dam- ages in this but reliance costs and expenditures, and difference between market value of the land and the price were. The trial went forward on that basis, however, plaintiff presen- its limited damage tation evidence on the special to items of damage claimed to have been incurred in reliance the con- tract.1 The special items said damages comprised categories, two first being expenditures actual made and second being incurred, obligations yet as un- Prince, Jr., Winder, F. and Donald J. S. paid. Prince, Geldzahler, Yeates & Lake Salt expenditures Plaintiffs evidence appellant. defendant City, for supported was aby photocopy of its check Roe, Bryce City, plaintiff E. Lake register Salt and a series of cancelled checks respondent. corresponding appear thereto which general damage prevailing, substantially then evidence of tions lower by defendant, option price. offered effect than land, due to condi- market value market contemplated plaintiff by total its subdivision of 6 and which 5 and as Exhibits record $2,587.39, We respectively. question. $24,982.41 land pur- for convenience checks categorize said foregoing In contrast with the evidence as follows: poses plaintiff’s to the reasonableness and incurred, foreseeability expenses op- $10,000.00 paid to defendant expert witness, Henry Traynor, defendant’s tion. industry established the standard for the total of several 5,000.00 representing the steps reasonably prudent to be taken Fahs, paid D. to James checks developer obtaining after but be- Jr., plaintiffs president, testimony fore it. His was un- “architectural designated as and, sum, controverted consisted of the management fees.” First, developer following: must assure rezoned, property can be if himself that the 5,000.00 representing the total of several use; necessary, for the intended paid D. Michael checks *4 expenditure leg of time consists of “a little Tuckett, presi- plaintiff’s vice Second, preliminary plat may work.” dent, designated as “en- and (at $500) required a maximum cost of but management gineering and “renderings, drawings, no other ar- working fees.” plans are engineering chitectural or needed Kesler, plain- 2,500.00 paid to Grant S. until after the is exercised." With a counsel, legal and tiff’s officer preliminary plat, developer should be able “legal designated as services.” financing for get a commitment any drawings plans there is no need for paid per- 5,069.80 composite sum the during option period just the since “that’s plaintiff corpora- sons outside expense get point.” much into at this too con- for various services tion Third, developer get a preliminary should sisting logo and brochure estimate of costs which can be based on the costs, work, reproduction design Fourth, plat. if F.H.A. financ- preliminary consultation, survey- marketing desired, ing understanding is a verbal is testing, ing, architectural soil sufficient; during option period, it and consultation, sketches, drafting premature any plans to submit to F.H.A. transportation. and Traynor Mr. further testified: $27,569.80 Total exception charge of whatever With Tuckett, officers, Fahs and Plaintiff’s may have to work a—work engineer services to their further testified as also plat preliminary out a and unless $43,500, at plaintiff valued performed require some sort of a community would paid. Specifically, which had been none of fee, any filing there shouldn’t have to be manageri- Fahs were further services of costs. manage- in nature. His professional al and judgment court awarded in fa- The trial “quar- referred to as were also rial services $42,587, plus pre- plaintiff totaling vor of services,” do with having to ter-backing the costs of both judgment interest and approvals and efforts financing zoning $27,- the sum of trials. The award includes subdivision devel- proposed to conform findings the court’s designated City, Park plan master opment with the “expended in reasonable reliance fact as consisted professional services while the fur- option agreement,” plans final architectural preparation of $15,000designated ther sum of as “services serv- development. All of his said performed through its officers.” It is thus $17,500, computed on were valued at ices trial court arrived at its apparent that the salary of anticipated annual the basis of an by merely “rounding off” and com- award were $30,000. further services Tuckett’s plaintiff’s exhibits re- bining the totals $26,000 consisted of the final at valued by reducing plaintiff’s supra lots ferred to pertaining to all 104 plans further, vided properly plead- “officers’ services” to claim of $15,000. proved.6 ed and only to the appeal challenges Defendant’s Applying foregoing principles damages awarded and the of the propriety option agreement law to the which is the costs. interest and imposition of subject of this it very is obvious the issue raised as to addressing First agreement nature of such an it was damages, we conclude proper measure of contemplation well within the of the con committed no error that the trial court tracting parties that certain relevant ex well considering special, as dam- penditures may necessary required under the proper measure of loss ages, as a part optionee on the of the in order to this case.2 facts of feasibility determine the damages,” as “general option. term The case, denotes those the instant applied to turn to propri- We now the matter of the things in the usual course of
damages which
ety
damages
of the amount of
awarded.
They are of course
flow from the breach.
merely
not
issue is
whether or not
ordinary
resulting from the
limited to those
out-of-pocket expenditures
obligations
contract,
which
purpose of
and obvious
were incurred
reliance on the
the “loss of
at hand would be
in the case
claims;
agreement
plaintiff
rather,
as the
by the difference be
bargain” represented
the real issue is whether
not
expend-
said
market value of
land and
tween the
obligations
reasonably
itures and
were
fore-
hand, the term
price. On the other
a necessary consequence
seeable as
*5
damages
“special damages” denotes those
option.
special
the
circumstances
which arise from
They
the
have been said to be such
of
case.
The rule
damages
is that the
to be
evidence,
as,
damages
by competent
are di
awarded for breach of contract are those
rectly
discharge
to failure to
a
traceable
proba
that are foreseeable as a natural and
obligation.3
contractual
In
consequence
ble
of the breach.7
other
words,
only damages
recoverable are
has
numerous occa
This Court
on
reasonably
those that could be
foreseen and
general
distinction between
sions noted the
anticipated by
parties
at the time the
damages
applicability
of
special
contract was entered into. Mere knowl
We
proper
damages.4
a
measure of
each as
edge
possible
enough;
harm is not
that,
in addition to
again reiterate
foresee,
defendant must have reason to
to recover those
damages, one is entitled
breach,
probable result of the
the damages
which arise from circum
special damages
Furthermore,
case, provid
claimed.8
before reliance
peculiar
particular
to a
stances
awarded,
damages may
have
they may
reasonably supposed
the amount of
ed
par
expenditures
must be
contemplation
within the
found to have
been
made,5
pro-
reasonably
been
made.9
when the contract was
ties
Contracts,
330;
Security
Hunt,
67,
6.
Title
v.
2.
Sec.
Co.
9 Utah 2d
337
See Restatement
(1935);
(1959);
Peterson,
Damages,
supra,
on
Sec. 8
and 22
P.2d 718
Prince v.
McCormick
Am.Jur.2d, Damages,
footnote 4.
Sec. 59.
7. Pacific Coast Title Ins. Co. v. Hartford Acc. &
Goos,
437,
v.
39 Neb.
58
3. Bank of Commerce
Co.,
(1958).
Ind.
7 Utah 2d
fendant plans, al and also based on the development during plan with its proceed us, record only before not were such unfore- period. We view such as con- option seeable, totally unnecessary any obligations it that certain of the cession purpose prior option to the time the were in fact furtherance incurred only necessary exercised and would become solely in and not re- development plan if and property purchased when the itself. liance on improvements and actual construction of begun. to conclude We are constrained itself, agreement that the terms of the from In regard to the further award of only option, very
this case involves
the managerial
“quarter-backing”
has the
party
is that one
essence which
Tuckett,
services of Fahs and
such were
exercising it or not while
other
choice of
rendered
them
plaintiff’s
as
officers in
choice;10
long
so
as it
has
party
no
performance
of their normal corporate
it is
writ
unaccepted,
a unilateral
remains
duties for which
should have been
required
the mutual elements
ing that lacks
receiving salaries.
kinds
These
of services
particular nature of an
in a contract.11
expected
provided by
are
to be
an officer in
incur no
requires
parties
that
ongoing corporate
course of
usual
activ-
absolutely
neces
expenses than
more
ities
not
proper
and are
item of dam-
expenses
reflect
those
sary
age for breach here. Even if the services
to be done before the
required
what
performed
were
reliance
occurs,
can be exercised.
If a breach
agreement, such reliance was neither rea-
only for
is liable
those
party
at fault
sonable nor foreseeable
same rea-
reasonably
could
have
expenditures
supra.
breaching party
sons' discussed
A
*6
of
consequence
a
the
foreseen
been
as
additionally penalized
should not be
for
reasonably incurred
and which were
breach
performed by corporate
services
officers in
party.
the innocent
by
management
the
daily
corporate
the
keep costs at a
It is
reasonable to
body.
corporation
the
mistakenly
If
be-
option period because
during the
minimum
time exclusively
lieved it had to devote its
exercised,
no contract is
the
is
until
premature preparations
op-
to
based on the
existence,
liability may
though
even
lie
the
agreement,
tion
defendant should not
option agreement.
breach of the
for
corpo-
liable for what amounts to
held
regard
judgment.
the services of
rate bad
Specifically in
to
Tuckett, it
be said that it
and
cannot
Fahs
Attorney’s
fees
amount of
necessary to
any way
foreseeable or
was
$2,500
the
damage
were included in
total
of their time and effort
expend
award.
rule on
is
point
The
this
ascertaining
feasibility of
the
-
attorney’s
that
fees are not
un
recoverable
testimony
As the uncontroverted
option.
by
indicated,
by
of the
less allowed
statute or contracted for
sum is far in excess
(thus
they
expenditures
provided
part
damage
the claimed
had
were re-
breach
as
of the
“reasonably made”).
by
parties
performance
quired
of the
not been
long
they
Utah,
Corp.,
City
as
were incurred “in
contract and as
548
Utah
v. Park
10. Russell
way
Certain
most
available.”
economical
P.2d 889
expenses
it
found the
were denied because
Espey,
2d
358 P.2d
v.
11. Williams
were not a loss
increased costs
result
Doyle
Davenport
Petroleum
Corp.,
P.2d 57
Okl.
unless,
course, equity per-
fairly
fact could
parties12
make
a finding,
such
it
matter, it
In this
would cannot be said to be supported by
mits otherwise.13
substan-
tial evidence15
may only
fees
and
appear
legal
finding
be recovered
will be re-
jected
law,
as a matter of
and
they
if
were incurred as a natural and
the fact
determined otherwise.16
probable
of the
agreement.
result
Applying
foregoing
principles
testimony
plaintiffs
The
counsel
of law the facts and attendant circum
legal
was to the
that his
fees were
effect
stances of this
we are constrained to
in
plaintiff corporation
for
organizing
conclude that the expenditures
obliga
and
articles,
cluding
drafting
corporate
by plaintiff
tions incurred
to its three offi
by-laws, minutes and stock certificates.
cers
their managerial, “quarter-back
for
performed prior to the
This service was
architectural,
ing,”
legal
and
No dis
agreement.
execution of the
(all of
$27,500)
services
which totals
legal fees in
tinction was made between
payment to
parties
third
logo
for
and bro
curred before
after the
of the
execution
design ($190)
chure
were not reasonably
option.
incorporation
The costs of
for
foreseeable nor
necessary
part
of a
providing
services
legal
in the normal
prudent developer. It was neither foresee
course
corporate
inappropri
business are
able, necessary, nor reasonable that such
part
ate
damage
of a
award for breach
expenses
extensive
be incurred on the
contract,
especially when rendered be
strength
option alone,
of an
they
could
any negotiations
option agree
fore
not have been reasonably within the con
such
ment-were entered into. To allow
templation of the parties at the time the
award to stand would set an undesirable
agreement was entered into. On the con
precedent.
trary, it
appear
would
were in
expenditures
As to the
made
the serv-
curred in furtherance of collateral transac
persons
plaintiff’s corpo-
ices of
than
other
pertaining
tions
plaintiffs
incorporation
(totaling $5,069.80),
rate officers
defendant
development
of its proposed subdivi
challenge
directs no
except
thereto
sion.
designated
item
as logo
$190.00
and bro-
The
remaining points
defendant’s
on ap-
design.
chure
Consequently, we do not can-
peal have been duly considered and found
remaining
vass the
items
propriety.
to be without merit.
supra,
For the same reason noted
we must
judgment
affirmed,
agree
logo
that the cost of designing
except
case is
remanded to
trial
brochure
nor
court
was neither foreseeable
rea-
with
directions to reduce the
damage
total
prior
sonable
time the
award
$27,690.
Costs to defendant.
exercised.
Generally, it
prerogative
is the
ELLETT,
J.,*
CROCKETT, J.,
C.
the trial court to determine the
facts
concur.
*7
we will affirm when its determination
MAUGHAN, Justice (dissenting):
supported by
thereof is
evid
substantial
However,
finding
ence.14
when a
is so
For
First,
two reasons I dissent.
plainly
that no
of the majority opinion states,
unreasonable
trier
as a
legal
Supply
Bringhurst,
Utah 2d
12. B & R
Co. v.
28
Seybold
Co.,
61,
v. Union Pac. R.
Blake,
442,
17
P.2d 1216
Blake v.
503
(1951).
3. Corbin costs, development finance as well. engineering work-ups are
Architectural components feasibility of economic
essential
reports. had, in
Respondent this addition- preparing reason for elaborate
al business Paragraph during option period.
plans respon- Option precludes
of11 Contract constructing any improvements
dent from Option Property until buildings on the plans “detailed
appellant approved has writing. specifications therefor” the optionee
Prudence would dictate get a contract assurance before
under such projected his Delays in
plans acceptable. optionor could be ruinous in after exercise
approvals loan alone. It is almost
terms of costs expect did appellant
inconceivable that not specifications” to plans and
“detailed period.
prepared during
I read cannot the authorities cited
majority opinion support either of object. I In
premises my judg- to which
ment, optionee rely promise can on the optionor, reasonableness is a as to which
his reliance of fact findings of the trial court should respect.
treated with enormous
WILKINS, J., concurs views
expressed dissenting opinion
MAUGHAN, J. PRATT,
Alma Glenn Appellant,
BOARD OF EDUCATION OF the UIN DISTRICT,
TAH COUNTY SCHOOL Respondent.
Defendant
No. 15843.
Supreme Court of Utah.
March McCoy,
Michael T. City, Lake Salt plaintiff and appellant.