*1 IS P.2d 305 480 rights Perfecting c)
As : water easy. Plaintiffs is not Utah at best RANDALL, J. William Plaintiff and 15 predecessors Respondent, about consumed their and rights perfecting their of effort years apparent diligence mala lack of or COMPANY, no
with TRACY COLLINS TRUST Exec- utor the Estate of Sarah P. Randall years tides, thereafter beneficial for 30 and Brereton, Deceased, Ap- Defendant water, years aggregating 45 ly used pellant. beneficial use of No. 8430. rights and perfecting deny rights to such wa Supreme one To water. Court of Utah. possible expense because, Dec. ter proof a final not notarize one did perjury, requests and completion of all until
form made, some details were
corrections would reasonably might believe one seem here, would correction,
bear —also —as invite doubts might Such denial
absurd. guaranties, unless, constitutional — reason, re good no for course, applicant, an through oath, displayed, or an take
fused letter flout action, intention
his reason statutory interdiction spirit life-blood preserve
ably calculated
n community, arid this —water. all the authorities have examined
We
n cited parties pro con con- canvassed, all needs to since none
sider sound, unnecessary pur- but
seem this decision.
pose of wade, j.,
McDonough, j., c.
concur. WORTHEN, JJ.,
CROCKETT result.
cur
Fabian, Clendenin, Mabey, Moffat & Billings, City, Peter W. Lake for re- Salt spondent.
McDonough, justice. chief Randall, Respondent, brought William J. equity an action enforcement alleged of an oral contract the terms of Brereton, his which Sarah P. Randall aunt, bequeath plaintiff promised property in and real consideration stock rendered him. services to be aid of an ad- judge,, with the The trial April 1 and visory jury, found that between 1946, September William Randall and J. Randall Brereton entered into P. Sarah *3 whereby if Randall agreement “would leave his business in his home and sell Utah, family move with his Ogden, Provo, Utah; employee of the become his devote Bank and would State of Provo caring talents, time, energy and attention to during affairs personal and financial for her would lifetime, death she upon her her that Provo, will, him, home by her her leave controlling constituting Utah, and her stock of Provo.” interest in the Bank State performed court further found that Randall contract; part his that Brereton the Mrs. 'shortly executed a third codicil to will her Nielsen, City, Lake agreement leaving H. Salt after was made Arthur Wen- Hammond, Fadel, home; George K. B. Randall the stock and that the serv- dell Bounti- ful, appellant. contemplated by for ices the contract to be personal This highly significant sideration. offer Randall were is -performed by inadequate showing the inference of the need would be for care damages and hence Mrs. thereof; the state of mind of the decedent even the breach for by if claimed contract somewhat remote in time to the in fact breach Drereton did agreement. before will Mildred Brereton also testi- to her codicil (cid:127)executing a fourth plans fied that bequeathed decedent told the witness by which she «he died respond- Randall, Richards. to induce half-cousin, Ross William one her stock to J. ent, to move take over to Provo and Appellant’s principal assignments er- “personal and affairs.” business insufficiency ror are directed to the of the Later, respondent after the had moved to support (cid:127)evidence to the decree below. It Provo, testified, Mildred that the Brereton respondent prove argues that did not had (respondent) decedent that “Will” said “clear, by convincing (cid:127)contract and its terms needs, good after her looking been to her in unequivocal” evidence. It further owing but it was because of their though evidence as to (cid:127)contended that agreement. The had understood witness to conform contract be held the terms definite, in effect. agreement a written was nevertheless, standard, the recited by contemplated the contract (cid:127)services testimony in- is not Mildred Brereton’s thereto, pursuant though suf- performed ap- plaintiff’s theory, consistent with damages, support judgment ficient to pellant certainly argues, and cannot alone specific perform- justify a decree do not appellant’s affirmatively the substantiate hand, on the other Respondent, ance. one, theory contract, was that the if there were and terms contract claims only management reference had and convinc- clear definitely established testimony her business affairs. This is clear witnesses which testimony several ing agreement that an existed between the testimony to direct uncontroverted plaintiff and the decedent. What terms contract as contrary, and contemplated is a matter for other evi- supports performed the decree proved and prove. dence to evidence shall examine We entered. Money and Dixon who Witnesses were contentions. light of these plaintiff and friends of both the bankers Brereton, a niece the decedent each testified that Mildred the dece- *4 purchase spring response that the to their offer her dent testified of 1939 the in Provo State Bank Mrs. made to the stock Brereton offer decedent witness to she had if them to believe that made a “what she had” the led witness give would whereby turning was the care of she stock stay her and take her. deal with Mildred his Randall moving after some over to return refused the offer Brereton the and to operate her interests witness stated that he could recall the’ to Provo par- Again agreement, the claim that essence of the full not the care her.” “take purely on business ticulars he Then had heard. concerned agreement redirect, rec- fact that the decedent his best witness stated omits the interests care, agreed as business ollection was had well that personal as decedent needed give respondent frequently illustrates. her home and bank record as the stock. This more recollection was witness, Mrs. another told The decedent made after the witness had heard the tes- was although she Zenger, that H. John timony Brereton, of Mildred Money and look after Randalls having the lucky in Dixon, and Mrs. Zenger. H. The John coming to because it her, she “had fact that memory his seemed refreshed. going to taken care were Randalls testimony he does heard not nec- testified that also Zenger Mrs. of.” prove essarily that he changed his tes- meals of the decedent’s furnished Randalls timony to conform with that of the other ordered. time kind witnesses. The trial court could reason- Brereton, nephew a William W. ably contrary. find to the Judge As husband, he, testified that decedent’s when pointed Dunford out in the trial court’s occasion, repair one offered a fur- on memorandum decision: Brereton, the 'latter told nace for Mrs. Ran- this was not to so as Will him do “There is no direct evidence to dis- had duty. witness on occasion dall’s pute any testimony, of this and a care- house, up straighten seen Randalls ful examination of transcript cer- decedent, cut lunch bring tainly justify would not concept spoke decedent times lawn. Several the effectiveness of the testimony had agree- of an the witness presence of in the destroyed on been cross examination.” one On Randall. had Will she with ment weighed When with all pre-. the facts Pro- yet arrived at occasion, hadWill sented, ample reason to believe- care take come down and was to “He vo. was telling this witness the truth as affairs,” business, or her and her he recalled it. get supposed to her bank “Will home.” and her stock D, Clyde attorney, An Sandgren, of Pro- vo, Utah, testimony appellant last recited at- testified that during the This time he impeach working on for the tempted to cross-examination was Provo State Bank on' deposition recapitalization, comparison project with which a the decedent Will “get Sandgren stated was to Mr. witness had told she had asked the cross-examination, respondent to come to Later all.” Provo to after it look
23 bank, and, in- vincing evidence, only as an is question interests at the the ducement, him requirements whether part promised perform- to leave of had through are sufficiently bank ance remove controlling met to the con- interest provisions draft- subsequently tract Sandgren will. from of the Statute of Mr. dece- ed a letter of Frauds. at the direction asked
dent, she what in he included law clear Utah is that to enforce of him President write, Vice to the equity contract in the services rendered let- Company. In Tracy-Collins Trust be that the must of such nature value there expressed ter, intent was decedent’s of cannot be ascertained with reasonable Randall, William nephew, to leave her J. law, accuracy in at an action be ade stock. of the controlling shares quately compensated recovery for Cott, 480, damages. Brinton Van 8 v. Utah if facts equity review In an 218, 33 In P. the Brinton case the services even or preponderance, fair record shows a performed to be in of the consideration evenly, is balanced if evidence promise convey oral property sustained. findings should trial court promisor’s highly peculiar death were uncertain vague and is If the evidence so personal. The old woman was cared for erroneous, obviously is finding by young girl, rendered who service which review. on finding a new may be was similar pro to the care the Randalls 520, P.2d 94 Stanley, Utah 97 Stanley v. vided for Mrs. Brereton in the instant 423, Willden, Utah 120 465; Morley v. case. McConkie, 1 Utah Perry 500; v. 235 P.2d King, v. 852; Youngren 189, Madsen, 264 P.2d The case of Startin v. 2d Utah 120 The bulk 386, 631, P.2d 834, 267 upon 237 2d P.2d which appellant 1 Utah quite clear testimony find we adequate relies to claim a above standard of value findings services, court’s The trial was a suit for value convincing. of service performed, specific for perform- stand. not therefore must question adequacy ance. of dam- specific for an action true It is ages was therefore not raised the case convey oral contract performance clearly point. is to be ren- services consideration land in deceased, Frauds, is The Statute of promisor Section dered, where 25-5-1, eye Code vigilant with an Utah Annotated (1953) re will scrutinize equity promises convey quires granting before of fraud interests any evidence land writing; but Section But where con- to be 25-5-8 allows performance. part performance to remove an here, proved con- dear tract, 24 the- property explicit,' and the tract to will The essence
tract from the Statute. on Con performed. terms were Corbin is found See part performance Utah doctrine 430, 432, tracts, 435 and Cott, (1950 Ed.) 8 Utah Sections Van Brinton v. in three cases: Contracts, 442; (1936 86, on see also Williston 31 218; Lloyd, Utah 33 Price P. 870; Ed.) Nat Section 494. 767, L.R.A.,N.S., and Van 86 P. *6 195 P. Heywood, 57 Utah ta v. only the- In was the instant case not services, problem value Excluding the definite, the- oral but also contract clear and removing emerge in general criteria
three performance Re was reliance thereon. in of Frauds from the Statute contract an oral spondent home in left his business and First, con the oral by performance. part He and his. Ogden moving in to Provo. defi and clear terms must be tract and its family gave up many normal activities to performance nite; second, done the acts Many day. night care for the decedent and equally contract must be of the clear and holidays night or on the decedent times third, definite; and acts must be in re requested her for Randall to sit with Mr. the contract. liance on Such acts in reli Randall’s testified hours at a time. Mr. son they a) ance must be such that would not family by abnormal life led the Ran- performed had the been contract have not decedent, caring for dalls while ad existed, perform b) and the failure to on the mananging dition to business affairs. part promisor would of the result in fraud manifestly Such evidence is indicative of relied, performer who since damages on the performance in reliance on the contract inadequate. Reliance may would be incapable pecuniary which is remunera ways, innumerable made in all of which performance clearly This was suffi tion. exclusively refer could the contract. from the cient to remove Statute Frauds. provision is pre This reliance included to questions The are whether refusal to next and unfounded fraudulent claims vent estate, introduction of evidence of re- allow the a decedent’s which are in against spondent’s income before and after he such situations as within this. herent improper prejudi- Provo was and moved to great clarity the contract has If cial; admitting and whether conversation definiteness, may be no need for re attorney Clyde Sandgren between D. exclusively referrable to the liance privileged. decedent was erroneous as contract, long performance fulfills the so rejecting prof The trial court in Both Brinton v. Van Cott Van terms. respondent’s supra, examples Heywood, are fered evidence of income be Netta cases, after moved both the court decreed fore and he In Provo based latter. its performance ruling ground on the require where oral that it would Specific its own upon motion or of jury the court wage relative issues collateral -the-trial may try any with an advi initiative issue and com- period salary trends .and * * *." The discretion of sory jury advantages other parative business jury in a fact deter a trial court to use such was not er- ruling The Ogden. Provo entirely proper. whole mination case, light of the any In roneous.
-record, prejudicial. it was proved contract was
Since evidence, attorney-client and since and definite clear argument the contract 78-24-8(2), performance Utah removed part Section under -privilege Frauds, fails, being partly such com the Statute of from (1953) Annotated Code personal, course of the decree of unique “in the made must be munication Here, appropriate. at employment.” performance was professional Bank employed Provo State -torney was by appellant, that arguments The other time of project at the recapitalization -on a pleadings, not conform to findings did decedent. with the conversation (cid:127)the testified illusory in the contract was allow- and that a employd by her until He become did not bequeath only what stock ing decedent to recognized This court has later date. death, time tenu- she had at the are friendly privilege inapplicability of ous. attorney relationship and another between *7 affirmed, Judgment and decree costs to profes arising during the course respondent. employment. McLaughlin, Burton v. sional 566; 483, Wig Utah and see 117 217 P.2d CROCKETT, HENRIOD, WADE, Evidence, 2303-2304. In more on Sections JJ., concur. addition, the nature of the communication by other wit- to was the same as testified WORTHEN, J., disqualified having him- agreement be e., (i. relating to messes self, participate does not herein. decedent), and as such Randall and (cid:127)tween waiving public, thereby made JEPPSON, Judge District (concurring). privilege. person get per-
To enable a to formance, point raised con remaining has been said the service The it that personal. jury peculiar in an The advisory highly must be use of (cid:127)cerns the personal with 39(c) Rules cases counsel deal Rule Utah cited equity case. companionship, involving love and af- unequivocally states care Procedure of Civil right by a fection-. not triable in “actions 26
In this case was not the usual one’s Changing- may residence involve person amount of care of the dece- social and other disadvantages that would' require plaintiff personally, appears dent several economic advantages to Cott, 480, persuade promisee Brinton Van 8 55 v. Utah P. malee the move. 218, personal plaintiff but the care gave is, my The opinion, evidence admis- the business of the deceased which involved sible itself but it not sufficient to change management more than mere business justify the result and newa I trial. concur gave personal some care to the decedent. majority opinion. result of the such, including repre- Her business was majority sentation stock Directors,
bank on the Board of
proper care such a would in- business personal peculiar attention.
volve
The trial court excluded evidence ad- of. plaintiff vantages coming to the to Provo 486 P.2d upon getting live without stock Edd E. PROVONSHA and B. Isabella Pro decedent, that death of the the defend- vonsha, George Patterson, H. Willana C. claimed would show sufficient induce- ant Patterson, Whitney Lula M. and Eliza Whitney, plaintiff Appel to move to beth for the Provo Anne ment Plaintiffs and lants, promise relying receiving on a without stock. the bank PITMAN, Pitman, T. Emet B. Hanna Mattie A. Garlett Standard Uranium Com opinion that reliance is am of I pany, corporation, Defendants and Re it was error to exclude the material spondents. No. 8503. evidence, I cannot see that the admis- but produced would have the evidence sion Supreme Court of Utah. agreement result. a different Jan. move Provo could have plaintiff may each of which promises, have several improve sufficient to-
appeared to conditions, and thus induce some
plaintiff’s *8 similarly situated make the move.
person promisee, prevent a such fact does
Such relying from on plaintiff, several al-
luring considerations.