*1 bеen in plaintiff’s car had it 'is involved than exchange of social ”* * * reciprocal amenities and hospitality. payment. for the (Em- Hoffman, McCann v. 279, 9 Cal.2d phasis ours.) Where, P.2d however, 909. the driver Our guest substantially the statute is tangible benefit, receives a or monetary statute,4 same as the which California otherwise, is a in- motivating reads: fluence for furnishing transporta- person accepts “No a guest as a who tion, the rider a passenger and the any ride upon highway vehicle a driver is liable negligence. ordinary compensation without for such giving (Citing cases.)” (Emphasis added.) ** * ride has action respondent. Affirmed. Costs to for civil damages against driver * * * of such vehicle unless McDonough, j., c. crockett, plaintiff in any such action establishes WADE, HENRIOD and JJ., concur. injury proximately that such death or or
resulted from the intoxication wilful (Emphasis
misconduct of said driver.”
added.)
In
leading
case of Whitmore v.
become a extend- merely road,
ing customary courtesies of the ferry bridge
such as paying tolls Rest., Torts,
(see a), Comment § it has been held that sharing expenses destroy does not the host guest relationship
arid if nothing more 4. See. California Vehicle 5. 37 Code. 235 P.2d Cal.2d *3 McCarthy, Cott, Bagley, Cornwall
Van *4 Macfarlane, Jr., City, for Salt Lake Grant appellant. Evans, City, re- Salt Lake for W.
Elliott spondents.
CROCKETT, also damages counterclaimed for for such Justice. money them allegedly breaches and for due awarding judgment Appeal from a they for rock had broken. The trial surety damages for breach Sprague and his found in favor Sprague, awarding judg- Bros, Boyles agreed in which of contract perform plus ment for the failure to rea- proper size for use rock into to break attorney’s provided sonable fees in the constructing levee on contract; rejected Boyles’ and also coun- Rigby, River near of the Snake banks terclaim. Idaho. Bоyles’ first attack on the judgment contractor, Sprague, general let a present action should have been Boyles by latter which the subcontract abated because another suit based on the break into sizes of 50 to undertook same facts was pending before the district 12,200 tons of minimum native pounds a September 22, court. On 1952, plaintiffs’ Quarry, in Olsen to be done located rock counsel сommenced a civil action in the Sprague’s carrying time with concurrent Third District Court on behalf Judicial with the Federal Govern- his contract out Sprague and G., U. S. & joint plain- F. Boyles furnish agreed also ad- ment. tiffs against Boyles. complaint That necessary complete ditional framed on the mistaken belief that the U. S. modifications, any subsequent F. & G. had Boyles; bonded Boyles timely given. notice was Com- provided defaulted'; that after default ton set 48 cents for each pensation U. F. performed S. & G. had and thus suf- Modifications broken to size. of rock fered a loss which it was entitled to recover requirement resulted in a prime contract Boyles. from Defendant’s answer admitted rock, supply'15,400 tons of that U. S. F. & G. had Boyles, bonded complete. admittedly did not although this was in error. Plaintiffs’ counsel later sued result- disсovered that U. S. F. & G. had bonded perform Sprague, latter’s failure to ing Boyles; from the per- formed the consequent inability and his for Sprague their contract and was prime subrogated to perform Sprague’s contract on time. rights to recover Boyles. up they against set the defense that He moved to amend the complaint fully perform state a in failure to justified cause of actiоn on this theory. Sprague, claimed breaches judge of certain refused to allow Fidelity Guaranty Co., who later the amendment or grant S. U. defendant’s mo- perform as bondsman to dismiss prejudice. undertook tion Neither (Their same, being interests Sprague. party appealed that action, any- nor was Sprague.) Boyles refer to them as thing we will further done in that case.
349 present rectly (and by the urgеs Defendant liable to Sprague subroga- now G.) former tion F. because the to U. S. & not litigated, suit should abated —was is and insists the nor was the same issue the pending pleaded action still in first filing complaint supplies an suit. and refusing order to allow the now new complaint in a bar to amended the case is facts the additional which were not before posi- present To sustain this the action. originally; cоnsequently Court the laid rule tion, California defendant cites State v. Packing down in the California case actu- District Corp., etc.1 There the Packing ally plaintiffs favors here. plaintiffs’ demurrer to Court sustained a Boyles sought justify their failure to plaintiff refused complaint; amended specified supply by the the dismissed plead the case was further and its because of several claimed breachеs court af- appeal Upon this prejudice. by Sprague, (1) terms his failure to make instituted the Thereafter State firmed. progress payment stipulated, the the time at the pleaded defendant proceedings and
new
keep
(2)to
quarry
the
cleared of rock
bar to
as a
first action
the
dismissal
processed by Boyles,
(3)
supply
com-
Wade,
second one.
Justice
pressed
by
air аs
the contract.
plaintiff’s
though
even
Court, held that
preju-
It is to be borne in
that in
mind
dismissed
action was
original
reviewing
Court’s
adverse
main-
barred from
dice,
State was
defendant,
plaintiffs
are entitled
the same
on
based
action
another
taining
to have
consider
us
all of the evidence and
circumstances, because
set of
general
every
fairly
fair inference
to be derived
additional facts
complaint supplied
new
light
therefrom in the
most
favorable
action;
dismissal
a new cause
stated
plaintiffs,3
this
on
true in an
action
only to
determinative
prejudice was
contract, as
tort.4
well
in
complaint
il; determined
extent
state
by
demurrer
attacked
the alleged
With reference to
of action.2
cause
(1)
breach number
above
referred to:
20, 1950,
April
no
But appеars
Boyles
was
dismissal.
that on
had
there
Here
been, plaintiffs
12,200
up
would not
tons of rock
broken
there
if
even
holdings from in
our
terms were entitled to
receive
under
be foreclosed
75%
pleaded
price
ton,
The issue
of 48 cents per
of the contract
this action.
stituting
per
ton
di- or 36 cents
therefor.
It is undis-
suit—whether
second
127,
Packing Corp.,
Jeppesen,
105 Utah
Beck
3.
v.
1 Utah 2d
262 P.
Calif.
v.
1. State
2d
P.2d 784.
Jay Stores,
.
Ass’n v. Dе
principle
affirmed
Frandsen
4. Cutler
3 Utah
This
2
Irrigation Co.,
2d
Claimed breach provide there were times sufficient com “While when efficiently operate temporarily hampered by were the drills pressed air terms, air, they is the one on lack of according to would place emphasis. reasonably greatest expected to be occur on Boyles’ concerning job, evidence and not sufficient in against As time or effect testimony failure, that a sub to constitute a there rescission or cancella- longest period portion of the tion of the contract.” stantial bеtween recognize We the distinction decision Considering the memorandum may properly be two situations: where a contract has been findings together, done,5 that completely court found that the abandoned or otherwise com- manifests rescinded, furnish obligation pletely has been nullified. met his it merely compressed But where the contract has air. breached, words, party in other wherе one perform has obli- failed refused some of error assignment The next it, re- gation may still under arises out considered does, force, though the use it Boyles insist that main and even quoted. above may fur- wronged party shows be excused from the term "rescission” theory performance of law oc- wrong for loss ther recover applied case, im In the instant he under casioned to him.8 the cаse in that must by Sprague is true that the trial court used the term breach pression rescission, import amount to “rescission.” Yet the full of his been sufficient to have by him breach whereas, regard indicates he did not any substantial refusing to justified cogent The most that as the true condition. have would be Boyles urges perform. is that he found that indication thereof further concept apparently by Boyles errоneous cause and dam- this there was a breach *7 it should judgment, underlies the of law ages flowing therefrom. The contention that, disputed be It not to set aside. is be finding by Boyles respect to such made considera contends, different Boyles judgment. cannot the defeat in a than in rescission tions are involved objections judg- the group Another of party in refus justify one will case which damages: there was mеnt relates to that by the of breach perform because ing nor competent sufficient evidence authority, Mr. neither eminent But as the other.6 enough findings thereon to warrant out, “rescission” definite points term Williston, the findings with assessed. The truth one the amounts in loosely used “when is often principally on respect based merely thereto were has exercised the contract party to keрt the Sprague, of of Mrs. who the evidence perform to refuse 7 assigned Error plaintiff. the party.” books for of the other conduct wrongful the U.S.C.A., Procedure, 28 on which opinion decision Civil of or memorandum 5.An 52(a) sitting by own rule is based. of the fact our trier a filed findings of may where the be consulted Humble, Mining Anvil Co. v. 153 U.S. law are inade of fact and conclusions 38 14 S.Ct. L.Ed. 814. opinion quate. memorandum that If (Revis- Contracts, Williston Sеc. 1303 7. 5 fact, is suf of contains Ed.). ed Corp. Curtiss v. Life Savers ficient. Contracts, Cir., Candy Co., of inter 8. See Restatement See. 182 F.2d 52(a), preting (1). Rules of Federal Rule books; containing ner of receiving- keeping in certain work sheets explained she compilation computation data, figures a and exhibits and the underlying of con- proc- by sisting payroll records, invoices, in of expenses of incurred vouсh- of Boyles pulled out ers essing checks, rock after and cancelled all of which were expense present of job, equipment indicating inspection in court for she was $3,295.28, $2,289.94, total of payroll there respect of for cross-examination with $5,585.22. showed to sheets also all These work of such matters. The trial court 1,000 Boyles credited did not commit overruling error in the ob- by jection from sold of oversize rock tons and receiving the evidence. The ob- Boyles processed. the rock insist also jection sheets were not made was that the al costs respect made to additional original made concurrent with entries operations after lowed transaction. insuffi performance is declined to finish re In that support judgment. cient been.held, It has and we believe by “Thаt reason gard the court found: salutary expedient the ruling to be a part on said breaches of said contract entries, one, original book docu where defendant, plaintiff, Sprague, of the numerous, so ments or other data are com $6,368.85, suffered in the sum plex, they cannot or cumbersome by necessarily expended trier, sum was by conveniently the fact examined plaintiff, Sprague, рerforming those materially or where it would aid the court material, things by contract between parties analyzing and the per plaintiff to be and the defendant competent person who-has made such that a by formed defendant over present and above all may examination such evidence.9 given by plaintiff credits subject the limitation that to defendant.” This support In developed of their to be assertion this find evidence must be shown documents, ing records, is too- vague com and indefinite support books or from established, the award of damage petency of which has been refuge seeks Colby.10 the case Duggins must be available examina the records In case the only opposing parties court found tion wit that regis sheep tering adds subject value, cross-examination to their concern market ness the failure pre The evidence here evidence. ing such defendant *8 sheep have certain require registered, plaintiff’s above conformed sented damages equal to the Sprague Mrs. testified to the man- ments. amount 9, Corp. 335, v. Com See, 10. 45 Utah 145 P. Interstate Finance 1042. Jewelry Co., 116, 280 Ill. 117 N. mercial 440; see annotation 66 A.L.R. E. 1220.
353 buyers. compromised Again which he judge’s refеrring memoran- impossible it that it dum appeal decision, On was held was it is obvious that he apply record or the only either to determine from this Sprague rule. He awarded applied the cor- judge $1,050 liquidated of the damage $850 whether damages. Sprague required pay, rect measure of stating w.as “there days were some when was as situation regard not the instant We do delayed air, by of so shоrtage slowed From the case. analogous Duggins days only that Sprague charge 17 should opinion ap- it judge’s memorandum against Boyles.” re- Sprague’s pears specifically he based his award necessarily pre- cover such is not damages expend had to on the amount on by cluded the fact that he also had per above cents rock the 48 ton over right under put the contract to on such ad- pay Boyles he have had to under would ditional force as con- to finish the was measure of This the correct contract. time, tract on unless it be that he shown procured long so damages reasonably so, refused, could have done but way economical the most additional which fact appear. not made to this Hence we find contention available. mеrit. of be without the defendant There are two items claimed Sprague for which we do find sufficient Boyles seek to have excised from support. is a charge The first of judgment $823.15 an allowed item $850 which Sprague claims was incurred because partial reimbursement he obliged to raise the penalty payment complete haulage suffered for con failing to truckers from 70 to per 80 cents tоn. struction of the the time set levee within only respecting evidence provi prime this item penalty contract. The the statement of Mrs. Sprague against Sprague sion was known to complained truckers about having to wait and thus would have been within con loaded; to be that Mr. Sprague their templation parties minds had diffi However, culty truckers keeping hired and on the to breach.11 advertеd job initially paid and that occasioned delay was 70 cents that this remonstrates per ton and later increased pres keep the air to 80 cents. failure to Sprague’s This evidence does indicate constant, sure certainty Boyles degree breach led fault, charge he cannot Sprague’s costs. The delay, the increased raise in rates resulting from solely appeаrs have a matter Bothwell & Swaner Co.12 v. citing Russell Baxendale, P. Hadley 194 1109. 12. 57 Utah Exch. 11. See C.J.S., Damages, (1854) Eng.Rep. 481ff, p. 15 Am.Jur. § *9 Boyles continued able to that the truck- believe between agreement in- breach, fully waiving work without ers. for tending hold accountable to is one consider The final item we breach, party a a bi-lateral which to compensation as Sprague asked $626.67 may contract do. well оne compressed air furnishing agree to I that the cannot court’s time beyond the and one-third months temporarily being the effect that performed. contract should have reasonably hampered by lack of air would fur- Sprague to clearly contract justified. expected, Sprague agreed If be is the evi- compressed and neither nish air air, furnish it cannot furnish failure to furnishing to that show dence nor the justified by saying failure is be be such the contract time beyond the normal it expected, temporarily Rath- otherwise. any greater. cost made the conjecture that beyond nothing er, There reasonably expected it that it could be prop- just items referred the two agreed. as be times would furnished all Boyles. damages against erly chargeable as ele- used an agreе I cannot stricken from they must be Accordingly mentary in a “loose” word like “rescission” judgment. mean way, not it therefore did deemed assignments error are Other differently is it suggest what said. To merit warrant sufficient without competency. discredit the court’s just items Except to the two discussion. that data I do not subscribe idea $1,449.82, by which mentioned, totalling presented that should be summarized and reduced, it must be judgment amount way simply it is so cumbersome appellants. is affirmed. Costs conveniently it examined “cannot be trier.” If it is too cumbersome the fact McDONOUGH, J., WADE C. by the fact conveniently to be examined WORTHEN, JJ., concur. trier, by the same token is too cumber- some to be examined into cross-examina- part). HENRIOD, (dissenting in Justice tion. portions of agree I Although parts thereof there are opinion, main not in I am accord with the conclusion myself disagreement. I find which charged should be penalty arising out of bond contract agree that because do not I penalty commenced obtained. Such had after work signed failed to furnish mentioned between plaintiff after completely and is Sprague, foreign trial court and agreed, air compressed naturally would flow believe from a could reasonably just It as reason- mention it. failure. waived