*1 implication argument prohibition sition of the is that no legislature grant cities powers or otherwise on the power levy can excise be read into towns taxes argu- disposes preemptorily the constitution. This ment of amicus curiae.
SINE et al. v. HARPER
September 16,
(222
571)
No.
Decided
7386.
P. 2d
1950.
*2
reforming
See 31 C. J. S.,
Sec. 256.
Evidence,
Mutual mistake
deed,
91 A. L.
1514.
R.,
See, also,
Richards Salt LATIMER, Justice. principal propriety question before is the of a us
judgment reforming court entered in the below a contract Jerry for the sale real entered into between Sine, wife, Jensen, A. Sine and Dora and Cathrine now important questions disposed deceased. Other less will be opinion. course of the The action was commenced against living, Cathrine Jensen while but she still died be- *3 present fore trial and the defendant substituted as her representative. personal The lower court determined the agreement express contract as written did reached by parties reforming and entered a decree the instru- appeals judgment ment. executrix from the of refor- plaintiffs assign mation and the cross on error the admis- sion in evidence of statements made Mrs. Jensen after signing agreement. holding In of our view on appellant’s assign- contention need not we review cross parties designated ments they error. The will ap- peared in the court below. purpose assisting
For following reader plat part 3, statement of facts a of Lot Block Plat “C,” City Survey, Lake Salt furnished. The piece involved is the 25.5-foot por- indicated the shaded plat. tion *4 day July, 1947, about the 27th a real
On or estate agent Joseph transacting by the name of Dowell J. was plaintiffs other the business for and a discussion ensued respect purchase property to the the the on west contiguous by plaintiffs. to that In owned con- this plaintiff Jerry versation Dowell informed was the Sine buying par- he his wife were interested in piece property they properly square ticular so could premises. off their correct name and residence of true not parties was known either of the owner so Dow- required independent investigation. ell was to make some Jensen, owner, He located Mrs. and contacted her with respect purchase property. gives to the Dowell following version of this conversation: He stated to Mrs. property Jensen that he understood she owned some on Temple, adjoining Bishop’s West North Auto Court (this property operated by auto court was owned and plaintiffs); Mrs. Jensen answered that she was owner; requested Dowell then to information as whether sale; replied willing it sell, was for Mrs. Jensen she was to provided price satisfactory; was Dowell then asked property including what would take she for the com- sale; mission for the $8,500; Mrs. Jensen stated she wanted Dowell answered that he was authorized to offer $8000; requested Mrs. Jensen information who purchase and after some hesitation Dowell purchased by notified her that it was to be Mr. Sine “who it”; owns the auto court next to Mrs. Jensen stated that willing pay anyone he else, should more than replied which Dowell pay main reason he would straighten square more because he desired out cafe; his other and build a Mrs. Jensen answered building that at one time restaurant, she had in mind her permit that, health would it and her while children property, glad wanted her to on hold she was to dis- pose of it because she properly. was unable to care for it
420 agreeable so there to Mrs. Jensen $8,000 was not
The deal Dowell, her and conversation between was a second agreement In this second dis- reached. time was an about the a conversation claims there was cussion Dowell part of conversation he the lot and this dimensions of getting more than Mrs. Jensen she was remarked to property; piece prop- per foot for the that a front $100 per foot and that erty for front the street sold $85 down high, particularly fact price in view the was going purchaser tear down the house. neither Mrs. conversations Jensen
At the time these legal description property and Dowell knew the nor so, part, their identified the the most conversations for North property either as next to Sine’s or as “656-658 West July original Money Receipt dated Temple.” Earnest signed by par- 1947, document 29, the first which was legal description merely ties, iden- does not contain a but being property purchased the street numbers. tifies assigned duplex to a had which was These numbers been portion premises. foot located on the west 49.5 On July day Real Uniform Estate Contract was the 31st prepared in office and the is described in Dowell’s Temple Street, North this instrument as 656-658 West legal following description likewise included: “Com- 61, mencing Lot at the Southwest corner of Block Plat ‘C’ feet; Survey, running City East Lake thence Salt 49% feet, alley; along 115 an thence thence North West alley feet; side said thence feet to South South 49% beginning.” place of During negotiations early Mrs. the course of Jensen piece 49.5 foot obtained an abstract brought up turned it over to Dowell. He had the abstract subsequently attorneys over date turned inspection. plat page for title There is on the first Sine of the abstract which shows the dimensions of tract of *6 being by description land covered as 75 feet 115 feet the page contained on the same dimensions. The en- this uses finally by in the abstract with the 115 tries deal 49.5 foot westerly portion tract, plat the of the never has been changed to a the reduction in size of the show by separate covered the abstract. Mrs. Jensen had a ab- piece property, stract on the eastern 25.5 of foot but this plaintiffs fact was unknown Dowell the or record is silent whether Mrs. as Jensen knew the extent of the property covered in the abstract furnished.
Attorneys plaintiffs for the searched the abstract of title and recommended that an affidavit be obtained clar- ifying discrepancies the in the names of certain of the grantors. affidavit, day This which was dated the 14th August, 1947, description carries the same and dimen- day sions the contract of the sale. 20th of Novem- On ber, 1947, plaintiffs, paid unbeknown to Mrs. Jensen the Payments piece. on by taxes the foot 25.5 were made larger tract, spite on the her of the fact that the con- required pay up including tract she the taxes to and 1, August August 25, 1948, On 1947. after this suit had instituted, paid been on piece. Sine the taxes the 49.5 foot July 1948, Jensen, In the Mr. then husband of the seller, doing some work the auto he court and testi- try fied she told him to piece; Sine the foot sell 25.5 pursuant to her he directions contacted Mrs. Sine at the auto court and asked her if she knew that 25.5 foot piece sale; was not included and that Mrs. Sine ex- pressed great surprise Shortly at the information. there- after, July 1948, on this action was commenced.
According testimony daughters to the of some of the Jensen, Mrs. her former husband and her husband at the sale, time she informed them at various times sub- sequent to the sale that she had not sold the 25.5 foot piece and, property; it could be used either for the
422 building purpose for her former husband a home operate to erecting hamburger he could stand which living. daughter to have driven earn One claims pointed out place latter Mrs. when the Jensen portion property. retained by two tract Mrs. Jensen Title full 75 foot came to strip separate In the 49.5 foot was deeded deeds. strip. 25.5 foot her and in 1939 she obtained title one Up until describes abstract pieces piece were 75 feet 115 feet. At that time two scrutinizing separate parcels. transferred as Without *7 records, public prospective purchaser abstract or the a knowing this, aS' no have little chance of there was would dividing pieces property; the two the smaller line between piece parking purposes eastern was used for the tenants duplex; parts auto in the there was rubbish and old on the easterly and, unimproved; portion, which there a extending part pieces. appear- line clothes over of both The ance of that familiar its loca- is such one single reasonably tion use could it and have believed was single parcel purpose. of land devoted to a After the Sines purchased property they premises, up includ- cleaned ing piece possession foot full 25.5 and assumed parcel. foot 24th and Testament executed on the
In her last Will sale, February, day 1948, months almost seven after bequest on specific of her interest this Mrs. Jensen made daughters. she one of In document her by the North premises address 656-658 West identified sug- Temple. pieces the tract into two is not A division of gested by her in this instrument. assignments appellant has made five of error which points: First, grouped under the court
can be three admitting incompetent testi- erred in in evidence certain judgment mony; second, is erroneous it vali- dates an oral contract contrary for the sale land frauds; third, statute of sufficiently the evidence is not convincing clear and judgment sustain the of refor- mation. point (1) appellant
Under (a) contends that the court permitting plaintiff erred testify to the statements concerning made to Dowell purchase premises; (b) permitting the court erred in testify Dowell to to con- versations with Cathrine Jensen in violation of Section (3), 104—49—2 1943, U. C. commonly A. referred to as statute”; “dead man’s (c) the court erred in ad- mitting evidence which tendency had a vary the terms of a written dispose contract. We shall of these in the order stated.
Apparently, there misunderstanding is some as to when evidence is inadmissible hearsay because of the rule. Jones, Evidence, Commentaries On Edition, 3, Second Vol. page guiding states the principle following in the language: “ something' through original sought ‘that come should an witness put hand, by told, to be in at second one to whom it has been one who is properly speaking, perceive not a witness who did not cannot there- testify it, somebody fore to the fact so. would said It *8 operate nullify requirement appear personally to that witnesses should testify publicly court, original perceiver in if the statements of the got through person; always could be in another and it was the rule that ” publicly appear testify.’
witnesses should thus determining
In by whether made statements Jerry plaintiff admissible, Sine to Dowell were attention given must be to the issues involved. The action was reform an instrument because of a mutual mistake of fact. Two elements by plain- which must be established they tiffs are purchase had a belief that the involved frontage the full scope agent’s 75 foot and that authority permit did not authority him to decrease the footage. front If these could not be established then the
424 mistake be no there could necessarily fail action would only purchase part. plaintiffs an intent If had on their writing was property, they or if believed 49.5 feet intention Mrs. and the their intention accordance with use could Jensen, instructed he or if been Dowell had property, part of the judgment purchase on the his own It action. in this they not entitled succeed were then by those made statements were not follow because the does Mrs. plaintiffs in the absence of Jensen that to Dowell hearsay. contrary, they considered as On the are to be given by they of material issues a wit- are direct evidence knowledge. perceived Dowell the evi- ness with first-hand testify dence, competent to it and could be cross- was extent of it. The about the nature and evidence examined legal proof a state mind of which there part was had no direct no other or better evidence. Plaintiffs was time and their Mrs. Jensen beliefs contact with by understandings were carried to her The Dowell. they way in which could be established that believed best complete tract contract involved the would be their they gave showing they the instructions Dowell when re- purchase quested attempt he property. purpose establishing evidence not introduced for was may intent or what Dowell told Mrs. Jensen’s have her. purpose showing limited to the of either It was beliefs establishing plaintiffs agent’s the extent of authority. 2d, 209, Webb, 155, P.
In the case of Webb v. Utah a contention. we answered similar somewhat question involved whether or In that case the testify attorney as to certain statements not an could obtaining made divorce from husband wife present at the time the who statements were made. WADE, speaking court, for the Justice announced the Mr. folowing rule: *9 “The conversations and the show the between decedent attorney of attorney’s authority authority. limitations such purposes and and negotia- The the attorney respondents conversations between showed and tions for the consummation of deal with in accordance respondents extra-judicial with the an attorney’s authority. There was no assertion proving of a witness material for the existence of fact such purpose hut fact fact, such conversations occurred were circumstances which showed the and intention purpose decedent to re- convey spondents unconditionally. attorney was one who acted in the decedent transactions herein and his competent involved evidence was to relate version thereof a relation conversations he had with though in the principals transaction was not even it hearsay, necessarily included statements made the other to parties the conversation which were not made in presence appellant.” hearsay if
Even we were to concede the evidence is competent being exception because of within an to hear- say Again quoting rule. from on Evi- Jones Commentaries dence, Edition, 3, supra, page 2012, Section Vol. we find the following statement: “ thoroughly ‘The rule is well settled,’ remarks the California court, ‘that, feelings, when the or intention, other mental state of a certain at a person including feelings,
particular time, his bodily is material under the issues evidence of such trial, person’s declarations the time indicative of his though state, then mental even is hearsay, competent as within an excep- ” tion the hearsay rule.’ questioned We conclude the evidence was admissible. 49—2, 1943, prescribes
Section U. A.C. that cer- 104— disqualified testify. tain witnesses shall be The subsec- particular tion importance action this as follows: “(3) proceeding, A party any action, civil suit or and any person through directly interested the event thereof, any person from, or under whom such party or person interested derives his interest or title or proceeding when part thereof, the adverse party action, in such suit or guardian claims or sues opposes, or as defends, an insane or incom- legatee petent or as person, the executor or heir, administrator, or devisee guardian, assignee grantee, of any deceased person, or or or directly legatee of such remotely, or heir, devisee, any statement or by, transaction such with, insane deceased, or incompetent or person, matter knowledge whatever, fact which must have been within equally of both the witness and such insane, incompetent deceased person, unless such witness is called to claiming testify thereto by such adverse party so
426 proceeding.” (Em- defending, action, suing opposing, or such suit or in or phasis added.) legislature is, question requiring an answer did agents used the when it words to of intend seal the mouths directly the event thereof?” interested in person “or limits introduction the section the fact that In view determining might value in testimony which be narrowly construe truth, are inclined ultimate we quoted phrase. inconsistently, both purposes, times
For certain claim plaintiffs seek to Dowell and defendant by plain agent. being He first contacted their was purpose purchasing property for for the tiffs his later Jensen and received He dealt Mrs. them. deciding this con It seems us that in fee from her. an necessary to he is not decide whether was tention it agent party, parties, or either for both whether independent contractor whose statements could he was an charged party. interest, any, His if to either in be get he should earn a commission and transaction was pay paid He no more if the for his work. would receive reformed as his fee on the amount contract was was based money realized, not amount sold. He had of land obligations parties and it difficult to each of the certain satisfying why plain in he be more interested should see handling properly than he Mrs. Jensen’s tiffs would be naturally be Defendant asserts he would affairs. agreement plaintiffs’ felt version of the he interested hand, responsible mistake. it he for the On the other was by plaintiffs that he would the de could be asserted favor if he made a mistake and the contract fendant because might required he to return his rescinded commis suggested Laying preference, aside these reasons for sion. interest, any, if appears not such as that Dowell’s incompetent. The in an would render him interest action disqualifies testify- under the statute a witness from ing an must be actual financial interest that will result pecuniary gain nothing It loss witness. has understanding, feeling, sympathy, do with or desires. his may credibility These elements affect his but not competency. Eschler,
In the case Burnham v. P. 2d 116 Utah 96, 100, were we faced with the contention that a husband grantee testify could not as to certain made statements *11 grantor party the because he an the interested within meaning WOLFE, speaking of the statute. Mr. Justice court, disposed following of that contention in the lan assignment guage disposed : further “One of error must be testify competent of. Mr. Eschler Was as to his conversa delivery? plain tion with the deceased at the time of the ‘party directly tiffs claim he is a in interested the event’ of and, therefore, incompetent testify this action under Sec. 49—2, (3) 1943, providing, subsection U. A. as it C. 104— here, party action, any per concerns us that a to a civil and directly thereof, son in the interested event ad where the party per verse sues as administrator or heir a deceased son, testify by, cannot as to statement or transaction with, deceased, whatever, or matter of fact which must equally knowledge have been within both the witness person, testify and the by deceased unless called to ad said party. Particularly they object testimony verse do to his expressed Mrs. Schank the desire that she continue the payment expenses manage taxes and incident to the ment of the in described the deeds in order that neither the defendant nor Mr. financially be bur Eschler While, course, dened. had Mrs. Schank not assumed the might payment, Mr. Eschler well been upon have called responsibility, shoulder this still this is not a ‘direct interest’ contemplated by If statute. Mr. Eschler had a direct interest, it was an interest to, transaction testified and not in event of this In the action. annotation at L. 32, holding R. A. 1917A cases are cited the interest 428 immediate, direct, and not pecuniary, must
in the action contingent remote, not uncertain, and that husband beneficiary may incompetent under his he become because intestacy. her to her We will or succeed wife’s 987, 42, Scott, plain- P. that the v. held Olson Utah entirely competent testify toas state- tiff’s husband was plaintiff’s mother to effect ments made deceased belonged plaintiff. deposits bank Mower that certain general 911, 260, on Mower, 228 P. rule v. 64 Utah 195, 319, point are in accord in 58 Am. Jur. Sec. this as stated Wallace, this See also Clawson v. 16 Utah result. 9.” 52 P. pecuniary,
If in the action must be Dowell’s interest contingent direct, uncertain, and remote immediate and testimony competent. His interest then necessity the action must of be remote uncertain then, only non-pecuniary. pos He have could no pecuniary in the reformation of the as a sible interest deed agreed holding purchase parties had and sell earnings. deprive feet him of his Neither 49.5 would not *12 loss of commission if the contract would he suffer a this the would have find was reformed. In event court agreed long parties the full 75 feet and as as is the on there completed the commission due. The fact that a contract is responsibility may a moral for a mistake and seek he feel created, wrong place he not to correct a he believes does category directly party in a where he is a interested in him Accordingly, assignment we overrule this the event. error. testimony
Appellant in her contention that is in error concerning because it varied the mistake inadmissible If a of written contract. such contention could terms the equitable theory of then the reformation of sustained apply right The not to written instruments. would contracts given, part, at least in so as to make the is written reform bargain express parties previously orally instrument the agreed upon. writing reformed the When a is result is that agreement legally an oral court is decree made effective although writings parties at variance with the which the agreed upon bargain. had prin- as a memorial of their ciple parol itself modifies the evidence rule. Contracts, 5, Ed., on
Williston Rev. Sec. states Vol. right the rule “The follows: of reformation al whenever necessarily is parol lowed an invasion or limitation of the rule, equity writing evidence since when it reforms agreement an enforces oral at variance with the writing agreed parties which upon had aas me bargain. necessary morial their This limitation is justice, work object and there seems no more reason to it in case than reformation in case of recission for fraud case, or mistake.' In either pre unless mistake law, cludes existence of a contract should not be writing correctly denied states actual contract conveyance made, inequi which has been since it is it, justice allow table the enforcement of and since re quires place, equity gives substitution another in its appropriate, where relief reformation and to that end * * *” necessarily parol admits relevant evidence. point answer We defendant’s second court erred reforming contract to do so written because violation the statute of frauds. Insofar concerns general frauds, are statute there two classes of contracts parol sale for the of land embrace all variations. The agreements first class includes where the con- written through tracts mistake include were in- lands which conveyed, agree- to be tended class second includes through ments where the written contracts mistake exclude conveyed. lands intended to be sold and This action involves *13 permit the latter class. Some authorities refuse contracts of theory this class to be reformed on the the modifi- writing and in the embraced enlarges real estate the
cation covering the no instrument conveys there is property when Pomeroy, charged. by party signed to be the subject matter general discussing the Ed., after Jurisprudence, 5th Equity understanding of the 866, Paragraph states in classes language: following in the better view courts and by is maintained and force in all its breadth “The doctrine whether highest that, which hold jurists authority, and ability of the introduce may parol plaintiff the executed, is or executory contract the fails contract written whereby the mistake or fraud to show evidence agreement, necessary the modifications and to prove actual the express limiting the scope in consists such variation whether made, to be extending enlarging land or other as to embrace it so and or contract through and subject-matter mistake, the fraud or been omitted which had varied, contract thus a specific performance then obtain may that he although agreement granted by is one which the be may relief and such writing. my This view, opinion, to be in frauds is required the statute of judicial overwhelming of by preponderance the supported is principles with the fundamental accordance complete is in authority, jurisprudence. as will more theory, fully appear other Indeed, the of equity if with specific performance; connection necessary has no in the sequel, restrict within necessarily would carried consistently out, and adopted of reformation. remedy salutary equitable the most narrow bounds treatment in the is illustrated clearly view of the doctrine same broad great by land. It is settled conveyances contracts executed by corrected of land be thus may deed authority preponderance subject-matter, extending enlarging its to other operation its scope, making supplying estates which had been omitted, land portions changing into a and fee, a life estate more conveyed comprehensive, against grantor. enforcing instrument thus varied and like, conveyed which have actually can thus to deeds applied If the doctrine contracts executory to mere applied it be title, may then fortiori legal can be relief, however, title. No such which do not disturb granted, or no executory executed, parol either when the contract is the terms of a written modify instrument, evidence can be used to when instrument statute required most emphatically writing, occasion of upon mistake, surprise, except frauds to be alleged incidents must be proved one or the other these before fraud; in such cases. This is certainly can be had to evidence parol a resort general it are more than real.” apparent and the rule, exceptions Jurisprudence, Reformation of Instru- American Vol. general ments, paragraph 17, rule. announces same That provides: section
“According executory contracts within the statute many authorities, *14 may by enlarging by restricting of frauds be reformed as well as their terms, being regarded inapplicable prevent court, the statute as so as mistake, in parties a case of fraud to declare the contract to be as the According courts, therefore, may have equity made it. to some a court of by including part omitted, correct mutual in a mistake contract reformed, notwithstanding then apparent pro- enforce the contract as By doing, decreeing hibition of the statute of frauds. so the court is not performance writing of an oral contract. The contract as made is in contract, by as is still a reformed it written made so decree of court.” Appellant quotes page 4365, from Section Williston Contracts, Edition, on holding Revised as in her favor. We quote believe that is consistent with the other authorities cited by herein. One of the cases referred to Mr. Williston is United Trucks, Limited, States v. Motor case, a Canadian appealed Lords, Reports House of 1924 Law The 196. suggested Court there present said: “It was further that the attempt action involved parol an to enforce a contract in- consistently principle with the Statute Frauds. It is, however, by well settled a series of familiar authorities that Statute of Frauds any is not allowed Court ad ministering equity the doctrines of to become an instru- enabling sharp ment practice to be committed. And in- power deed the rectify of the Court to mutual mistake im- plies power may that this nothwithstanding be exercised agreement parties the true had not been ex- pressed writing. in Nor upon does the rule make inroad principle, plaintiff another must show first actually agreement there was an concluded antecedent sought rectified; instrument which is secondly, agreement that such inaccurately represented has been in proved party may instrument. When claim, this is either spite Frauds, of the Statute of on instrument which represent the other insists does not agree- the real statute, fact, only provides ment. The agreement that no writing duly signed not in and not shall be sued on but when the written instrument is writing rectified there is a statute, jurisdiction which satisfies the of the Court rectify being prohibition outside the of the statute.” permits the reforma prefer to rules follow We where, this, particularly of contracts in such tion cases necessary the terms here, all of the instrument contains through a mis frauds but comply the statute of with the essential terms is one or more of take of fact adop incorrectly or mistake stated. omitted keeping theory that the principle tion of this *15 abridge remedy reforma not the of frauds should statute of prevent in a shield to the not used as and be tion should being intent to the true from reformed show strument therefore, We, the parties. conclude that reformation the by prohibited the of frauds. not statute is defendant, by is that the evi point raised The last convincing sufficiently sustain the to clear and is not dence general rule is stated judgment, gives The us more concern. Contracts, of the Law of Section Restatement in 511, as follows: reforming rescinding a writ- a decree or in order to obtain “It is essential discharge mistake, contract, assignment conveyance, for
ten by remedy proved necessary and clear of the shall allowance fact preponderance.” convincing a mere evidence and not 460, Co., Utah 256 George Loan & Trust 69 v. Fritsch In juris this 400, 403, Hansen stated law Mr. Justice P. to be as follows: diction jurisdictions other that a written in this and in “The law is well settled agreement parties express where reformed to will be contract definite, convincing, clear, proof and where the and of the mistake negligence guilty seeking party in the execution is not the reformation making timely application for its reforma nor of laches of the contract proof required party degree question a to to entitle The tion. passed upon following this court and in the has been before reformation 4; Dinwoodey, Keith, 312, Ewing Deseret v. 52 P. Nat. Bank v. 16 Utah cases: Bailey, 584, 899; 43, 215; Weight v. 45 P. Utah 147 P. Cram 53 17 Utah 100; Dennis, 309, Reynolds, v. 186 P. Wherritt 48 Utah
v. 55 Utah P. 534.” reasoning quoted follow the to It is not difficult principle the evi- reaffirm law and authorities necessary mutual of fact must dence to establish a mistake convincing. principles apply are: be clear and The difficult convincing; clear and who is evidence has When and making responsibility If ultimate this determination ? we ourselves, arrogate judge responsibility the trial then through passes conduit which the evidence becomes merely participation and his amounts to ministerial act in getting the are in favor of that record this court. We acknowledge If, hand, procedure. prefer- on the we other right position accord him the to draw his own red conclusions, powers narrowed. As thus then our review are narrowed, required within a are to determine whether we satisfy us rather restricted zone the evidence is sufficient could, testimony judge by believing the trial making reasonable inferences certain witnesses therefrom, reasonably find that the evidence was both qualitatively quantitatively and to be clear sufficient convincing. gives adoption of such a rule the trier of making his and is facts some latitude in determination keeping procedure. our method of function as an Our *16 judgment to our for that appellate court is not substitute judge, trial to determine whether his find- of the is say ings meets are based on evidence we can the mini- being convincing. mum standards of clear and The trial is in more favorable situation to deal court a imponderables many arising in a trial of
with an ac- acknowledge vantage point We tion than are we. his on things credibility demeanor and we realize that such and “live he far effective in show” watches is more dis- closing typewritten pages are ultimate than truths appreciate transcript. opportunities a his better We searching untruths, inaccuracies, exaggerations, out and fully accept or interest concealed bias and if we are to advantageous position must we allow him some latitude in giving weight to elements are unable to we evaluate.
The court below determined that the evidence was suffi- convincing satisfy
eiently beyond to and his mind clear reasonable doubt a mutual mistake of fact existed. We are, therefore, compelled analyze the evidence and deter- standpoint quality mine it is sufficient from the whether findings judge. quantity and to sustain the of the trial While convincing” “clear terms and are relative and are not capable they certainty. measurement, carry an element of WOLFE, Mr. Greener, Justice case v. Greener 194, 204, convincing Utah 212 P. 2d defines “clear and very appropriate way. distinguishes opinion In that he phrases “preponderance between the of the evidence” and convincing following “clear language: evidence” “* * * proof convincing it, That which carries with only power persuade probable mind truth purports prove, or correctness of the fact it but has the clinching element of such truth or correctness. Clear convincing proof might clinches what be otherwise probable to the mind. lay alongside measuring proof no
“We have rod to signified by to ascertain whether it meets various tests ‘barely’ ‘merely’ ‘slightly’ preponderating the terms or or ‘fairly,’ ‘greatly’ ‘overwhelmingly’ preponderating. or Nor can measure the content of such we terms as ‘clear and ‘beyond convincing,’ (which reasonable doubt’ we take doubt), mean ‘unquestion- free same as from reasonable convincing,’ ably etc. These terms deal with states of mind degree vary put and to a as to the content into them as minds vary. They implicit in compara- all have them the idea of tiveness, standards, signifying each other more or less degrees proof. convincing particu-
“But matter to for a be clear to a *17 point lar at least mind it must have reached the where there remains no serious substantial doubt to the correctness opinion A mind conclusion. which was it yet entertained, slight, was convinced not a but conclusion, would of its to correctness doubt as reasonable in a of confusion.” to be state seem evi- question fact that about the can little
There convincing. clear and concerning mistake was dence Sines’ in the record which would of evidence There is not a scintilla pur- contemplated the Mrs. that either Mr. or Sine indicate acts, Their state- full feet. tract less than the chase of a beyond rea- purchase establish ments and conduct before they all the 25.5 believed at times doubt that sonable purchase. Their after parcel included in the actions foot discovering fortify Mr. that conclusion. When the mistake suggested deceased, Jensen, Mrs. Sine the husband dispute purchased, piece had not been she was steps surprised. cor- Immediate taken to were shocked and instituted Mrs. Jensen the mistake and suit was while rect living. difficulty producing Her death increases influencing intent, not a factor her evidence of plaintiffs’ belief. determination showing Mrs. state pass to the evidence Jensen’s now
We together trying piece of evidence so the bits of mind. In intent, there certain inferences which her are as to establish Undoubtedly, judge necessity trial must of be made. portions analysis upon certain of the evidence seized memoran- not been favored with a influential. have We showing how he arrived at his conclu- him dum decision parties sion, and conduct of the must the acts so we view impressive to us. inferences that are most draw suggested, subject neither the of sale was first When legal description parcel nor knew the Dowell Sines dealt with either the street num- their conversations and so adjacent duplex appearing or the land on the bers ground or no on the There were land marks motor court. isolating them if the street num- indicate to feature to purposes identification that the numbers bers were used fairly and vendee that the indicate to both vendor would having informed been the full 75 feet. Without sale involved *18 having public records, made a search of an abstract or no but Mrs. Jensen would be familiar with the fact that one separate purchased pieces property sep- she had two of piece arate times. She obtained the smaller and so eight years county records, for at least physical set-up occupancy suggest nature would that parcel. property approached was one When Dowell first Jensen, purposes Mrs. he informed her of the for property purchased; namely, being towas that it was by purchased Sine, contiguous property owner, Mr. permit square holdings him to out his in that area and allow him to construct or erect a cafe or similar business on the site. There were no discussions at that time relative to bounds, metes and and no mention was made at time holdings the discussions did not include the entire of important developed by Mrs. of Jensen. One factors property in this Dowell conversation was that involved contiguous must be land owned It Sines. is almost impossible having informed, to believe after been so portion Mrs. Jensen would intend to deal with a property disclosing Likewise, without fact. it seems unlikely that Jensen purpose when Mrs. was informed of the purchase strip that she would intend to reserve a small intervening destroy prin- land and the retention cipal purpose property being for purchased. which the opening Dowell’s purchase conversation for the part Temple Mrs. Jensen’s on North anyone there is no frontage evidence that ever discussed 49.5 If the feet. nature and extent of the first conversation were such that had Mrs. Jensen intended to reserve the in- portion herself, point terior at some in the conversation she would have notified Dowell. The substance of conversation could not be pur- construed as an offer to chase piece or deal with a removed from the court motor and Mrs. Jensen’s insistence on an increased price because hardly of its comports increased value to Sine selling part that she was on her with an honest belief by the piece property cut from that owned Sines. off In Dowell Mrs. Jen- the second conversation between *19 discussed, price sen, was foot dimension was footage price roughly basis, computed and the com- on a vicinity. pared property There is no to other sold in that testimony or conversation Mrs. Jensen Dowell that that footage feet, computations lesser that mentioned the 49.5 basis, any Dowell had reason to were made on suspect hold an that Mrs. Jensen intended to out interior portion property. It is unreasonable conclude that to along Jensen, property Mrs. she feet of who knew owned 75 Temple property appeared North and knew the to be in a single piece, carry participate on all would transactions prior signing in the real discussions to estate buyer selling never to contract and disclose that she was appeared ground property than less what on the to be a sin- parcel. gle executing
Up point the contract there does appear any to intent of Mrs. be doubt about the Jensen. express intended the oral written document was to under- standing previously pre- when that reached and was was frontage appears. pared the 49.5 first The earnest foot receipt money property premises identified those Temple, located the contract at 656-658 West North legal description, and the which included both the address to 49.5 It is not showed the east-west course feet. diffi- misdescription cult understand in the uniform how testimony, According real contract estate arose. Dowell’s description copied into a clerk in the contract that time office. The abstract had been delivered at and the entry distances and last courses were obtained from the possession in the the abstract. The abstract was of Mrs. still money signed receipt time at the the earnest so Jensen legal opportunity place description that the first pre- written document was when the real estate contract was pared. tip help
There additional of evidence are three bits finding the scales in the trial court favor Mrs. Jensen selling believed the full tract. There she was was a discus- sion between Mrs. Jensen and Dowell to the value willing pay. and the amount Sines would be She higher apparently price that a believed could be exacted owning contiguous property, from them because she knew price slightly that the per offered was more than front $100 foot, purchased, if the whole 75 feet were this fact her was called to attention Dowell. The of- amount fered on that basis seems consistent with the value of other slightly in that area and amounted more than price per keeping the other sales. This foot is in with the pay announced belief of Mrs. Jensen that Sine would more purchaser. However, than other if Mrs. Jensen intended *20 strip expected $8,500 to sell the foot 49.5 for she to obtain nearly foot, per price a which far exceeded the reason- $170 property able value of the and more than twice as much property neighborhood. for other in received the improvements The evidence indicates there were no the on property justify or reasons other which would Mrs. Jensen believing get in price could she such an inflated for the property. interesting
The second bit of information illustrative given by surviving Mrs. is Jensen’s belief her He husband. testified that in her July, 1948, a conversation with in she suggested try get that he contact the and Sines them take piece. approach the 25.5 Mr. foot Jensen’s to the Sines very suggestive is apprehension of an that all not known He testified he went to see Mrs. Sine at auto the prefaced court following and his remarks with the state- ment: “I if she 25.5 asked her knew feet were in- not purchase quite cluded in the and she of course sur- prised.” approach by agent This a most unusual an who only and information from his his instructions receive could information about sale was principal. His source of proba- they had discussed Mrs. and unless from Jensen mistake, bility have been no reason for there would a the 25.5 feet suspecting that Sines would know timidity approach the method not included. were misunderstanding. suggest knowledge of a bequeathed sale, Mrs. Jensen months after Some seven daughters. property one of her At time involved to property the street address. She either described she adequate- property numbers the reference believed piece ly un- the full tract or she left the 25.5 foot identified mentioned. appellant’s in the record favorable to
There is evidence The best evidence is the written documents. contention. writings testimony is the that Mrs. Aside from these there Jensen, sale, to. the effect that after the made statements portion her had own use. she retained pointed addition, evidence that out the In there is the she daughter November, 1947, she one and that in property. paid on the smaller tract of taxes possible of this with the It is to reconcile some evidence However, given support plaintiffs’ claim. evidence Wheeler, testimony of certain instances Mrs. daughter, Dowell is irreconcilable their versions dispute. judge the conversation were The trial was in demeanor, frankness, conduct, position observe their interest, bias, apparently apparent he concluded accept There is Dowell’s version the conversation. *21 place in the no evidence record which causes us stamp unreliability testimony of on Dowell’s and we know why reasonably no reason the trial could con- of court not clude his version that was correct. convincing require
That be evidence clear does undisputed it that in all It details. be most un- would have a on the where did not usual to trial merits witnesses circumstances, disagree parts on on of conver some of sations, and on some the facts. The test of clear and convincing whether, taking whole, a is the evidence as it convincing degree preponderates plain in to a favor of the does, it test. In this case we If then it meets the tiffs. sufficiently convincing to is conclude evidence justify finding in the trial mutual mistake court fact, finding As matter other would fact. result, sense have rendered an absurd that absurd parties for the contract known to both reason would ignored. utterly have been affirmed, judgment of the lower costs court
respondents. McDONOUGH, JJ„ concur.
WADE WOLFE, (concurring specially). Justice fairly province opinion I think the main well covers the determining of this court in whether the fact finder should be sustained conclusion evidence has reached degree proof requires. which the issue Perhaps may point contribute out the rule of Stanley Stanley, 520, 465, v. 97 Utah 94 P. applies 2d to all degrees proof. degree proof required In that case the perhaps preponderence. was one fair or mere We concurring (in if, opinion) said after we read the record, it seemed to us that appeared pre- the evidence ponderate slightly against the finder, conclusion of the fact we would still him affirm imponderables because of the opinion. mentioned the main Of course where the evi- documentary dence was all or of a nature as found in the al., case of 241, Greco v. et Grako 318, 85 Utah P. 2d preponderance where the greatly was so “in favor of a conclusion different from that arrived at the trial judge parts the unrecorded of the trial could not *22 change apparent preponder- reasonably expected such * ** independent where, element ance, fact some credibility speaks might of witnesses affect wrong by judge, eloquently trial conclusion of a otherwise, reason apply.” But there is no rule does not degree required why proof if the is of we not should convincing findings uphold the the clear and caliber judge the evidence trial to his conclusion reached degree appears even if the evidence as we read it slightly being convincing. to fall That us short clear exactly Stanley Stanley, supra. the rule laid down in v. is give imponderables In both cases we thus effect to the not revealed the record. way, im-
In not allowance for the this we make ponderables we also not revealed to us record but margin type of the fact finder include some for the of mind margin theory man” which is the which the “reasonable allows in reasonable minds for differences minds. Some cautious, very conscientious, are to their come con- great responsibility clusions with sense delibera- slowly acting necessarly tion. But a mind not more is quickness accurate nor more sound than a fast one and necesarily mind noes denote lack of consideration. Be- margin cause there different minds to react dif- ferently from the same evidence and even with the benefit imponderables, and still be within the area in which may operate reasonably a mind reason, is with we —that recognized past have in the the reasonable man test. why Greener,
This is in the case of Greener v. 116 Utah 194, 206, 212 P. 2d where we also confronted clear and convincing evidence rule we said: think “We the evidence and the conclusions which could reasonably judge have been made therefrom were such to permit mind trial * * being
to attain as a reasonable man to the state of clearly convinced added.) (Italics thought emphasize amI anxious to is that while advantaged position we into take consideration against our the live scene fact finder in that he views *23 allowed factor reading record, a must also be the dead there minds. We may expect in reasonable we for differences' only being the ones up our conclusions as cannot set ad- the we had had could arrive even reasonable minds vantage imponderables. of requires degree proof which of hand the
On the other to con- convincing in order clear, unequivocal evidence importance and against of certain issue is clude for or a charged with one is observed. It is used where should be stigmatized with fraud party not be because a should fraud evidence; cases where it simple preponderance of necessary contract because aside a or a is to set release fact; in cases where or mutual mistake of claimed fraud is comport what is asked to reform of contract alleged parties at express intent of the claimed to real made; where in those cases the time the contract was change something which will courts are asked do appears to be surface from that which on the situation placed parties have themselves or where where the the court is should remain as it exists unless situation morally justice requires that it altered convinced that be requires public policy and in cases where other goes beyond proof a mere status be not disturbed unless preponderance. or fair degrees proof
But there are evidence which between merely barely preponderates preponderates and where it convincing degree just may degrees ato as there be be- proves tween that evidence which convinces and that which certainty. may a fact to a Evidence be such as to create probability a definite that a conclusion correct is but not convincingness. may passed point reach It have equipoise point preponderance and also the of bare or mere point probability, may and reached a of definite not point conviction, have reached the I have taken occasion degrees length proof because these dwell at some on ignore put increasing tendency all them and there an is preponderance. And this plane of mere proof on a flat legerdemain may accomplished of result sort convincing telling if it is ourselves as reviewers that us, regardless appears judge it we should of how trial go convincing I not that far. I think accept it to us. do retrogression. reasoning definitely on the side such may repetition con- entail some of evidence While I opinion, main I think can illustrate sidered in the best by apply- application principles mentioned above ing myself out- them to as a reviewer. We find several standing pieces of evidence which tend to establish the fact buy that Mrs. that the Sines intended to the 75' but they I have intended. now first Jensen must known so *24 read it the record consider how the evidence as we from the fact could have affected and influenced mind of (the case) finder lower court in this whom we assume evaluating as a reasonable mind trained for evidence so stage Second, to reach the of conviction. I shall then com- analysis pare the results of this with the result when I con- my evidence examination sider the from own record assuming that I also a reasonable trained to have mind may evaluate evidence. The trial court have concluded that plaintiff definitely the evidence in favor of the so overcame probative effect in evidence favor of the defend- clinched ants and the conclusion of mutual mistake that evidence of such mistake to the trial was court clear and convincing. following: I refer Mrs. Jensen had property pieces. treated the as one and not two She knew buy square that Sine wanted off his holding north; to the east and this was inconsistent purchasing part frontage a whole and leav- y% ing 25 of it in between. price
She offered more than knew was a front $100 purchased. yield foot if the 75' whole were This would a 49.5', good for the price If wanted for the whole. she $8500 foot, seemingly per far more nearly front she wanted $170 worth, as much than twice and more than the for, neighborhood sold property in the as other according to the evidence. least reasonable being that all means If the idea of convinced I think must fact finder’s mind —which has left the doubt say prepared am not attend the convinced state —I transcript, have been judging that mine would from the judging the record from I conclude that state. thought more than a I there was alone that would have simple preponderance probability of a mutual is a fair convincing fact, preponderance. How- mistake of but not a may, ever, judge trial who and heard the witness saw man, convinced of the have been existence a reasonable of a mistake. mutual going to show these different states of mind
I am into why I, con- on the face of this record not have been would I think vinced. I would still have what would be reason- subject the evidence itself to sub- able doubt because contradictory stantial But I realize that I am inferences. weigher not finder the fact evidence print cold adduced before the finder in live which was fact finder, says opinion, and that the fact form the main imponderables may supplied before him which have had though clinching reading element. Even the record convincing I would have found clear and as I in- *25 terpret phrase, that, say taking that I cannot into consider- imponderables judge operate ation the the trial did on the evidence as a reasonable man and that as such he could not have come to the conclusion that the mutual mistake of appeared convincing. Certainly fact to him be clear and being it was not so far short of free from reasonable doubt to me from a consideration of the record as to enable me say I would not have been convinced as was the judge trial if I had seen and heard the witness.
445 PRATT, (dissenting). Chief Justice directed, changed the front The reformation property and rear contract from covered description feet wide 75 feet wide. The “Commencing reformation is before follows: 61, ‘C’, corner of Lot Southwest Block Plat Salt Lake City running Survey, feet; thence East thence 491/2 feet; along alley; North 115 to an thence West the South Alley feet; side of said thence South 115 feet to the 491/2 beginning.” place of positions relative plat ilústrate the
This small will controversy: strips in money receipt
An earnest involved in the case describes Temple” as “656—658 North West Salt City. duplex Lake These numbers are on found sits upon strip. foot The real estate contract also re- 491/4 property by fers to the those includes the numbers particularly follows,” words “more described as and this is description quoted Furthermore, followed above. abstract, an effort clear the title as to names in the signed reciting Catherine Jensen an affidavit the above description. foot 491/4 mistake, there
Defendant claims was no claims separate tracts; one, title in two came deceased the V4 Hardy, other, strip in foot 1930 from Catherine strip, foot in 1939 from a Pehr Ehrenheim— J. S. Van 251/4 agreeing plaintiffs Cathrine Jensen to sell to dealing only. strip foot Each of two 491/4 *26 446 1912 that until introduced in evidence show
abstracts strip foot property as one strips of were carried two depth. frontage this Mr. Ehren- In 1912 and 115 feet description strips, under a unit who owned heim then both away. conveyed Thereafter frontage, feet of 75 foot 49% through as two strips transfers carried various were respectively. separate strips of and 25%.feet 49% strip and strip foot foot lies between 49% 25% court; operated by plaintiffs an auto property owned and adjacent immediately to that court and, property is the on the west. give history transactions
Let me first a brief regard I parties As to the merit case. without history, read that it is this: visiting agent, Dowell, Mr.
A real estate while Sine Mr. they, him on other business was informed Sines, buying property interested in west of their were (auto above) plat motor court court on the ex- —Dowell way: my property”— pressed it this That Sine said “next to he, Sine, square Dowell, property so that could off. acting, Jensen, Sine, he told Mrs. on behalf of Mr. con- property tacted Mrs. Jensen about the to see if she wished having to sell it. He testified to asked Mrs. Jensen this: you “I understand some own on West North Temple adjoining Bishop’s said, Auto Court?” She right.” said, said, “Yes, “That is I it “is for sale ?” I’ll She said, you sell it.” I “What would ask for it? What would you including said, take the commission?” She “I want said, get $8,500.” $8,500. get I “I you $8,000. can’t I can buy I $8,000.” said, am authorized She wants “Who buy conversation, according Wheeler, it ?” At this to Mrs. daughter Jensen, incidentally of Mrs. who was not men- will, tioned in her Dowell referred to the as 656 Temple. numbers, and 658 on North West These as stated above, duplex strip. are the numbers of the on the foot 49% *27 Jensen, After conversations Mr. Sine and with Mrs. referring prepared money receipt the Dowell earnest property by the those had the numbers. He also uniform real estate names contract and later the affidavit to clear prepared, strip. each of which describes the foot This 49% description covering taken piece. was from the abstract signed receipt The the and the Sines contract before Mrs. signed by Jensen The did. affidavit was Mrs. Jensen after expressed counsel for the some doubt as the names. Sines signed. after This was the contract was As evidence sold, testimony property Mrs. Jensen’s state of mind as to spoke daughters having was introduced that she to her suggested dog retained feet; the that she a hot stand 25% upon placed it; suggested and that she to her husband try that he and sell it to the Sines. It he was when broach- question buying ed to the they Sines the it that claimed to have learned that not in the was included contract. There no was obvious division line between the foot 49% strip strip. might and the It be reasoned that the 25% hedge in strip, front of the foot roots 49% approximately ended one foot and a tenth east of the line, dividing and the branches a few inches east of line, and sewer cleanout on the foot strip about 1.3 25% line, feet east of the indicate a division line. The foot 25% strip parking was used purposes by the tenants of the duplex. were, times, There rubbish and parts old auto strip. on that There extending was a clothes line over it upon and an old shed it for a time. Some of these facts however controversy; are in particularly those as to the shed clothes line. they premises, over, up
After took the Sines cleaned including strip foot and collected the rents from 25% duplex. again strip parking foot used for 25% City, purposes. part lived in Mrs. Jensen another quite question. distance from some She paid strip on the taxes foot after the contract was 25% buyer pay called for The contract
entered into. property purchased. taxes on the consummation, ready for was about the transaction When y% strip covering submitted the 49 foot the abstract opinion merit of to the for their for the Sines to counsel opinion. they It was title; rendered a favorable names, identifying affidavit opinion that led to the their however, appear, signed by It does Mrs. Jensen. gave dealing anyone for the Sines with the question thought of the width the front conscious Throughout being purchased. the entire trans- of the lot any personal Mrs. never had contact with action Sines *28 agent The estate on the stand Jensen. real while witness signed admitted that he at fault. The Sines the in- examining degree any them with of struments without thoroughness. handicap in
The of Mrs. is a considerable death Jensen case, of the as do not have her version affair. this we question or not Mrs. in the case that of whether serious is fact, laboring under mistake of when she Jensen was upon the The burden rests the contracted with Sines. plaintiffs prove that she was. shoulders of the Sine to above, I cannot of fact I have recited From the matters finding they support that escape that will a the conclusion sig- papers them for that the tendered the Sines believed buy feet; they intended covered what 75 natures —the laboring a or not Mrs. Jensen was under similar whether grave doubt, selling, in error as to the she was is especially acquired of had the in view the fact she 75 respectively; in feet as of and feet and two lots 491/4 251/4 fact, also, purchase proposition of the the view duplex put to her in the form of an offer as to the house numbers, orally, believed; if both Mrs. Wheeler is and writing money receipt in as in the earnest made out the agent Sines; contract, the and the real estate made for also agent the out the for Sines. Mrs. affidavit Jensen’s
449 clearly strip limits itself foot as ac- she did not 49% quire strip Hardy, the other from Catherine mentioned in grantors. one the affidavit as of her immediate ux, 1115, Knight 114, In v. et 90 Utah P. 60 2d Nordfors page 1116, applicable at this court discusses the rule reformation, page quotes George from the case of Co., 400, 403, Fritsch Loan v. & Trust 69 Utah P. liberty correcting typo- follows have taken the [I graphical by inserting Reports in error Utah quotation.] italicized word “of” for “to” in the : jurisdictions “The law well is settled in this and in other written agreement contract will be reformed of the where express parties convincing, proof clear, definite, the mistake is and where the seeking guilty negligence the reformation is not party execution making contract nor laches its timely application reformation.” Can it be said evidence recited we have in this clear, definite, convincing case is of the fact that parties upon minds met the inclusion of the 25% strip part foot the contract? What about the careless- negligence agent nessness ? To answer the Sines’ question affirmative, first in the one must cer- surmount weight. tain obstacles that have considerable these One of moving parties controversy, fact that the this plaintiffs, who, through agent, are the ones their initiated *29 complain. they the errors they of which now Had been the by victims of a mistake made the Jensen side of the con- troversy through agent latter, plaintiffs an the standing upon ground. have would been more solid We peculiar agent have here a situation complain- of an ing party preparing the instruments which the error could have by been ascertained and corrected a bit of care- papers ful examination of the point involved. Another the very instruments definitely conform the claims Viewing of the defendant. money the earnest receipt and the uniform real estate together, contract it is as almost if agent the placed the position has vendor in the saying: of Temple, “more North 656—658 West covers
This sale metes follows—then as particularly” described Having meticulous a description. produced such bounds affidavit, is it in the contract and also in the limitation very strong proof present plaintiffs upon not incumbent words, indicated Jensen, by her her actions that Mrs. description in- metes and bounds she knew description? Of a mistaken contract was cluded in the convincing may to one not have course, is clear and what justifiable another; dif- appeal to but the area a similar relationship to the some opinion should have ferences of party in his careless exercised meticulous care descriptions. the com- particularize Here efforts to willing very carelessness parties are to confess plaining so; is, course, leading to their interest to do It to error. them, testimony said that it can be and in fairness finding error on their support a of carelessness and will all part. Jensen? Did she know But what Mrs. astray? leading they themselves Did she time were wrong encourage along shrewdly road? There them great upon. The a found such conclusion is not deal to frontage 88,500. price For 75 feet this would contract per approximately front be foot. For foot front- $118 49% age per approximately it be front foot. This would $171 probative may fact have some value in view according testimony property vicinity in that had agent per an been sold for foot at earlier time. The $85 per valued the front foot vacant $50 $75 thought property. purchaser building He would tear the probably $2,000. down—it would worth about However great subject no amount of evidence introduced on this of market the time the transaction. values might why
Another fact is this: One wonder Sines strip splitting would want of land owned another their holdings; and, prior strip view of the use foot 25% parking place, as a be reasonable would to believe that *30 purpose. They the Sines wanted it for that used it after so purchase. are, course, the expressions There of the stated by agent by broaching the subject as used him in the they Mrs. Jensen. But are met to considerable extent testimony Wheeler, daughter Jensen, the of Mrs. of Mrs. agent’s the very closely conversation which conforms agent with making what the did papers. out the various agent If the so daugh- conducted his conversations that the thought talking ter only he was of 656-658 West North Temple, unlikely it is not that appealed his statements light. Mrs. Jensen in a similar is, course, There the question of the truthfulness involved, witnesses question which is much easier for the trial court to deter- mine, However, than for us. the bad case, the so feature plaintiffs concerned, as the are lies the that far fact everything agent tendency their impress upon did had a position the mind one in vendor, de- Gf ceased, the that is now claimed on her to have belief behalf parties been hers —the dealing were belief strip. really with To hold that Mrs. Jensen 49]4 foot they feet, spite parti- wanted all the knew cularity agent’s descriptions contrary, is an assumption turpitude part hardly of moral on her justifiable. pieces seems She knew she had two separately gave described. She the abstract of the one description covered of the contract and the affidavit. degree justifiableness it be Can said with she deliberately withheld the along other to lead them further path of The error? one abstract was sufficient for a person careful to catch the error. That abstract carries original frontage with its 75 foot and then shows the transfer of the 49 strip. plat foot V2 strip. abstract discloses 75 foot If she delivered the abstract hope the error would not be dis- covered, she must gambling upon have been agent’s checking through carelessness in that abstract. I do not *31 reasonably proof said that it can be that the is such believe fact; acting or that she knew mistake of under she was Certainly pass. the mistake to existed and allowed the error convincing, nor definite. it is not clear and agree in the of the other statements do not with some I brevity, prevailing opinion; I shall the interest above, I think to the discussion is the limit dissent judgment important point in the case. The most court should be reversed. lower v. OF BOARD OF EDUCATION
DAWSON DIST. et WEBER COUNTY SCHOOL al. (222 590) Decided October 2d 7391. 1950. P. No.