*1 96 (affirmed Utah, Company, P.2d 213 249
Cab Utah, 259 P.2d July rehearing Hence,
294). much of what is like say this
Wade and matter straw. But the
threshing old validity of the analysis of the
deals with the supposedly arising
“inference” person killed in an accident
fact that “presumption” that men because
instinctively protect act themselves from opinion. I am not
harm new has such matter been ana-
aware that
lyzed this court before. v. DAVIS al. et et
RASMUSSEN al.
No.
Supreme Utah. Court of 27,
Oct.
scinding” really status-; placing look toward quo as is the a true case with - settling toward differences between ties of defendants *2 occupation Dalton, Fork, sold use and Elias Mack American Don an premises, like. Plaintiffs Hansen, filed City, appellants. Lake for Salt paraphrased in and as amended Woolley, Don V. Tibbs and Dilworth brief, “alleged that the terms Manti, respondents. for for the agree ties were to the division of HENRIOD, Justice. agree, the and if were unable to Appeal judgment a on motion to' from determined the court.” same should be cause of action de- All were alleged 1) 2) for deceit and breach of hay and for fendants “rescinding” agreement substituting for or authority, was sold without dairy a farm. Affirm- a contract of sale of de- accomplished; ed, no costs awarded. up note and chattel and cancel the liver $32,000 price, contract set a to do mortgage, which defendants offered months, down, payable $8,000 $5,000 in 9% effect trial court found and which the by chattel evidenced a note secured done, finding with which had been payments mortgage, with annual be entered instructing judgment agree, sought 1) Plaintiffs delete thereafter. necessary; accordingly, if public against being the forfeiture clause as Plead- did. premises, which vacate the $25,000 damages policy 2) recover parties,-for proof indicate ing and alleged as to the farm’s assets deceit assertable consideration, deserted had and re- and character. denied Defendants contract, seeking previous claims under the 3 counterclaims founded on taliated with contract, of a substituted refuge under including a claim to the disputed none- but $8,000 was breach, liquidated damages or any ques- Therefore part. integral theless mortgage, for foreclosure of the chattel be- contract under tion of forfeiture persisted. suit, Pending the contract came moot. already litigants, without benefit of their counsel, Examination record con employed able entered and most agreement, which- us that the court did not err con into an oral the terms of vinces subject Though cluding had not established a- appeal. are a Nor es- speak jury “re- as to the deceit. as one any one of a conversation between the return
tablish an fbr defendants, presence- not in the and one proved other- Plaintiffs here assert re- of the witness. by testifying that defendants wise was admissi- answer agree to re- the first to return peatedly refused or rule, be- hearsay amount, exception choice ble as to the leaving turn of such no irrespective ing act” admissible of reasonable men but to “verbal the minds hearsay nature. accuracy its agreement, was no such clude there answer’s exception proffer de- No made under no alternative but to leaving the court therefore, error, of law that rule termine as a matter prov- was sustain their burden of waived.3 failed to that no ing agreement. It such an follows may have court the lower Since admittedly could be had reversion technically ruling, in its absent erred an al- for relief under abandoned contract appealed, we award plaintiffs may have leged provision. unenforceable forfeiture no costs. position trial court took difficulties, settled their McDonough crockett, jj., findings judg entered and based its concur. other, ment, things, upon terms among *3 contract, in what resulting WOLFE, Chief (dissenting). motion granting was error believe plain grounds based on the theory dissent. upon a cause which re had not stated tiffs went trial is set out granted.1 Plaintiffs did state Supplemental lief could Complaint Amended and follows; been able to recoverable claim as * decision, * * however, prove it. The plaintiff, “11. for directed have been correct motion defendant, Kenneth Rasmussen and the therefore, to We feel constrained verdict. Neal met G. Davis and entered into an policy, affirm, light accepted in the of our agreement whereby plaintiff, oral conclusion doing Kenneth Rasmussen returned to the reasons, is in on incorrect though based defendant, Davis, posses- Neal G. for some other reason.2 correct fact personal property sion the real and plaintiff, Kenneth urge sustaining he Rasmus- error question received sen theretofore objection calling to a 1, Evidence, L, 3. Wigmore, 41(b), Vol. Sec. U:R.C.P. Rule p. 321. Co., 1937, v. Beneficial Ins. Sullivan Life 351; C.J.S., Ap 91 Utah peal 1849, page Error, § and defendant, Davis, except Neal cer- G. “13. plain- That the defendants and equipment tain farming that had been tiffs have been unable to reach disposed Ras- the said Kenneth as to the amount of the mussen, returning and in lieu said $8000.00 should be retained personal property, plaintiff, contrary, the said defendants and on the delivered to the defendants have refused and continues defendant, (sic) refuse to return- Neal and G. some plaintiff. That the defendant, $8000.00 Neal G. sum ample to reinburse $2000.00 Davis, accepted farming in lieu for the rental of the that was not delivered personal real property mentioned : in the manner above mentioned the in the and for damage above mentioned contract between may prop- have been done to such was rescinded and defendants erty during the time the same was in as to the $8000.00 possession at the paid plaintiffs pray judgment “Wherefore time the written above mentioned against the defendants for the sum of tract was entered into. together with their $6000.00 here- costs plaintiff, Kenneth “12. That expended.” (Italics added,) defendant, Rasmussen In answer to the Amended and Davis, Neal agreed that the Supplemental Complaint, the defendants retain G. claimed that the written contract “was him the rent- to reimburse the defendants rescinded for the breach premises during the time that al of the possession thereof and plaintiffs had agreed, of their settlement of their done might have been accounts for the which defendants to said sustained, that defendants should have plaintiffs were in while right which had been same, Ken- paid.” get in contact neth Rasmussen would The issue between the was thus attempt with in an to get his *4 sharply parties drawn: Did the in their with the defendants as agreement negotiations settlement agree- come to to the amount of the that was disposition ment as to $8,000 the of the paid on the above mentioned contact payment? down plaintiffs between by be the should retained The support evidence did not damages. as rental and their claim parties agreed that the that the parties $8,- got together the noat and can- of the keep 00Q premises the or “rescinded” the written contract pay celled to them rental1 for majority opinion were in in toto as the lead plaintiffs would during the time that the Instead, of con- pay us to believe. over series them thereof versations, the settled their differences bn the inflicted $8,- except one, disposition the the the balance of one the $8,000. They $5,000 note agreed the that the 000 should be returned to 1, 1952, January can- testimony the due on should be ; Rasmussen, that he and celled that the move from the effect should to farm; negotiation all settled after considerable give except disposition they agreed should their differences $8,000 sheep for payment; that Davis the defendants down certain steadfastly machinery back had sold refused $8,000 Finally, Rasmussen from the all differ- and threatened farm. their disposition if he off farm so that ences were did not move settled party, $8,000. agreement regard Davis No could sell it to another in that consequently him "a than re- sue lot more could would part $8000.”; of mained can- that Rasmussen insisted trial court to settle. I him; majority the reasoning be returned not follow opinion from the farm but made no could not moved that because the disposition $8,- prove part agreement of the de- on the $8,000, the defendants. can now 000 held fendants to return the keep That so in the it. cannot be absence majority opinion holds that because parties between agree- plaintiffs failed to establish an plaintiffs emphatically de- effect. Since the part the defendants to re- ment on the the defend- nied that ever part turn the it, ants court erred in dis- plaintiffs, the defendants are under no obli- missing action at the close of holding to return it. This gation bot- presentation of their evidence. conception the erroneous tomed on together pro- and made a so-called got remand the for further agreement. the entire ceedings rescission of to determine what course, is, theory, defendants’ 000 the defendants are entitled to retain as but in al- sustained them. lege that settled their differ- WADE, J., with the ex- concurs views disposition except the ences pressed dissenting testimony süpports Rasmussen’s Mr. According allegation. WOLFE, C. J.