*1 ¡70 COMPANY, Utah Cor MINES
WASATCH Plaintiff, Respondent, poration, Cross-Appellant, Defendant, HOPKINSON, Appellant,
William Cross-Respondent.
No.
Supreme of Utah. Court 26, 1970.
Feb. unpaid
recover the balance purchase on the price 1600 tons of soil removed from plaintiff’s property by during part latter of 1958. Defendant asserted in plaintiff’s alternative that the claim was *2 by the statute of or limitations that according to the terms agree- of his oral plaintiff, ment with defendant agreed to pay for the soil only as he sold it. Defendant counterclaim, filed a wherein pleaded by that force agree- of certain ments between the privi- he had the lege of removing soil in the area of certain mining claims of Wasatch for the term of years and that repudiated Wasatch had such agreement damage of defendant. prayed Defendant damages for and con- firmation of his to remove soil. Upon a court, trial before the it dismissed by Wasatch’s claim virtue of the fact that presented clearly the evidence indicated that pay defendant had for the soil as it, further, he sold claim by Wasatch was barred the statute limi- Goodwill, tations. The court dismissed City, David A. defendant’s Salt Lake David by Day, counterclaim of the Murray, H. virtue fact that the plaintiff, respondent, for purported terms of the contract cross-appellant. were so vague and uncertain as to render the con- Neslen, Pruitt, Richard R. and Robert G. unenforceable, and, further, tract that the Jr., Mock, City, Neslen & Salt Lake for damages claimed so defendant were defendant, appellant, cross-respondent. speculative that the court would be unable any damages. to determine CALLISTER, Justice. corporation
Plaintiff (hereinafter appeal, refer- On defendant asks this court to red to Wasatch) as initiated this action to construe certain documents as hereditament, spe- incorporeal pay per lease and were to grant
a ton $6 F.O.B. cifically, profit prendre, to defendant mine site. Alta receive $4 years, respective their judg- affirm Wasatch a term shares. This $2 regard amendment recited that it years ment of the trial court was for 25 cross-appeals option with an The latter renew on the of Wasatch. same basis. claim agreement prohibited in The the trial court erred sale contends or transfer namely, permission defendant without rulings, of the both of its boards of di- required pay for soil until rectors of both Alta and not Wasatch. provided that its claim document actually sold and case of death had been Hopkinson, accept limitations. of H. the statute of W. his sons was barred can However, reject the dismissal or the lease asserts and amendment. The be affirmed. instrument further counterclaim should recited it amended lease, all boundaries included patented certain owner of damage the area removable without mining lode claims. Several of officers buildings property or installations on the formed new .and directors Wasatch or dumpings with mine interference Development corporation, Alta Wasatch company. operating Defendant recorded interests develop the mineral Company, *3 17, agreement August on There this 1962. awas di- on of claims. Defendant one its the that this nothing in record to indicate majority share- Alta rector of and became to acknowledged ever so as document was corporation. holder in that conveyance recordation as be entitled to into a asserts entered Defendant U.C.A., 57-3-1, 1953. under Section corporations, agreement both written by defend- presented The next document 1954; no one has been September, about 1959, 11, February and was ant diligent was dated after a able to locate this document agree- agency an entitled an amendment to gave agreement allegedly de- This search. Development Alta ment Wasatch from between privilege the remove soil to Hop- H. Hopkinson, dba Wm. and Wm. H. for a a drain tunnel the boundaries around provided instrument kinson This price a ton. & Sons. years of two at $6 term of providing for original agreement 9, 1956, February Alta and Wasatch On for located payment per ton soil of agreement, $6 was another wherein executed lease and under property of Wasatch on to amend that it an instrument recited was Company Development to Alta Wasatch Development Com- Alta to Wasatch lease original price changed to reduce was provided that H. W. pany. agreement This provide the moisture for per cent sole distrib- Hopkinson & Sons were further agreement the soil. in tent in deposit in described soil utors of upon Hopkinson -into could enter Wasatch introduced stipulated that an agreement proffered time for which it property at reasonable defendant September 1956, in providing he didn’t inter- for provided of of defend- removal of ant to mining operations topsoil selling other recover dis- and fere with - Company. sign This of Mines tribution. Defendant refused to lessees Wasatch agreement signed solely requiring Alta. provision document because of a was him sell and distribute a minimum 50 upon The last document 1, January topsoil carloads of before lease, was amendment relied entitled an Defendant asserted he removed that the soil effective undated but recited that its was October, 1958, pursuant separate to a 1, agreement date was March 1959. This agreement oral awas distinct trans-' lessors, identified Alta Wasatch action from others that he had conducted re- Hopkinson & Wm. Sons as lessees pursuant .agreements. to the written to a lease cited that it was amendment per- operation now April Wasatph between In both Alta and. payment for soil be re- taining meetings held of their boards directors mining purpose moved lessees from for the formulating some'kind property of the lessors situated Little working relationship with defendant and Canyon, particularly fpr Cottonwood “and payment to determine the matter immediately ground known as the surface topsoil 1600 tons of defendant had removed surrounding the stockpile. entrance to Wasatch meetings to a These were held agreement Drain Tunnel.” The recited first, consecutively, Alta Wasatch second. original price per only ton was of $6 Defendant asserted that he attended proceeds reduced to and that net meeting; $4.80 other witness con- per ton among were to be divided $4.80 of the Alta tradicted him. The minutes Alta, Wasatch, Hopkinson, each to re- meeting agreement recited that the lease per ceive ton. The 15, 1953, document $1.60 of March between Wasatch provided that any rights accruing Hop- expired formally termi- Alta had kinson proceeds settlement of the nated; that the lease of Febru- were personal considered Alta, matter ary 9, between Wasatch and *4 among parties all concerned and were not designated Hopkinson which as & Sons dis- transferable. The signed by document was soil, opera- longer tributors of the was no in Alta and Wasatch and defendant testified by Hopkinson’s tion and was in default re- it, signed he although also signa- his of 1600tons moval of soil and his to failure ture does not appear upon copy pay therefor; in agreement evi- was declared dence. terminated. The minutes of the Wasatch
74 vague and ties were so uncertain that the purpose recited
meeting interpret to them. court was unable proposition a consider meeting was to obtain concerning his desire Hopkinson has appeal, defendant asserts that he On vicinity in the soil remove a contract right to the soil a definite and enforceable The board Tunnel. Drain of Wasatch land, profit prendre, a on all 78 on the a again to consider him with agreed to meet each, of 20 acres owned Wasatch claims might formulate. any proposition he Canyon. in Cottonwood Little gen profit privilege plus a A defendant met with board The Wasatch as a erally authorities characterized 23, 1963; September .his counsel on prendre is an a profit prendre.1 profit A a he had lease a claimed a Wasatch, creation of in interest land.2 Since of the claims soil from all take profit prendre involves a transfer an a according former latter’s coun- land, to be the better view seems it did interest in to which many claims included sel it be deed.3 At this meet- that must rights. the surface not own map procure a ing, defendant May in be documents pro- he from which designate areas conveyance of an interest strued as a clear- to obtain posed soil and remove land? the Forest Service
ances from
the docu
survey of
A careful
Board of Health.
present
a
intention
does not reveal
ments
property to
convey
in real
interest
an
from Wa-
a letter
received
Defendant
appear
agreements
The
defendant.
wherein
August
dated
satch
corporations,
arrangement between two
an
more
remove
him not to
directed
lessee,
as
lessor and Alta
already
paid for the 1600 tons
until he had
that de
them
mutual
between
its board
met with
and until he
removed
agent
marketing
may act as the
by his coun-
proposals made
completed
designation of
of the soil.
distribution
August of
1963.
sel
is a clear indica
distributor
defendant as
foregoing evidence
on the
Based
not the intention
tion
submitted,
grantee
documents
written
realty.4
par-
incorporeal
interest
agreements between
an
concluded
Phrases,
Sharp,
1969 Pocket
123
4. See 13 Words
v.
Utah
1. Deseret Livestock Co.
(1953).
Supp.
who or
353, 358,
means one
3: “Distributor”
75 give The pleaded documents do not sufficient the statute of limitations description property of the to determine generally without designating the sections alleged the boundaries of the area which the of the upon statute or statutes which he re- grantee may enter and soil. The remove lied. 1956 indicates “all Rule 9(h), U.R.C.P., provides: granted area” which defendant asserts him In pleading the statute of limitations each, an of interest the 78 claims 20 acres not necessary is to state the facts However, by owned Wasatch. the docu- showing may alleged defense but it
ment recited that it
amend a lease
was to
generally that
the cause
action
of
is
Alta,
between Wasatch and
there was
by
provisions
barred
of the statute
presented
no evidence
indicate
claims
on,
relied
referring
or describing
such
upon which
had a
Alta
lease.
1959
specifically
definitely
statute
sec-
designate
document does
defendant as a
number,
tion
designation
subsection
if
lessee, but
describes the boundaries “as
any, or
designating
otherwise
pro-
ground immediately surrounding
surface
upon
vision relied
sufficiently clear to
the entrance to the
Drain Tunnel.”
identify it.
If
allegation
such
foregoing,
compelled
From the
we are
troverted,
party
pleading the statute
judgment
conclude that the
of
establish,
trial,
must
on the
the facts
court on defendant’s counterclaim must be
showing that
the cause of action is so
affirmed, since the
not
documents do
iden-
barred.
tify
grantee,
grantor,
the interest
general
Defendant’s
plea of the
granted,
description
of
or
the boundaries
statute of limitations was
not
accord
in a manner sufficient
the in-
construe
U.R.C.P.;
ance with
9(h),
Rule
this inade
conveyance
as a
of an
struments
interest
quate plea will, therefore, not be considered
in land.
pertinent
appeal.5
on this
cross-appeal
Plaintiff
in its
asserts that
the trial court erred
its
Finally, plaintiff
dismissal
contends that
plaintiff’s
ground
claim the
on
that was
trial court erred in its finding that
statute
limitations. De-
to pay for the soil as he
Coop,
262,
specifically pleaded.
v.
6 Utah 2d
See Westerfield
limitations must be
263,
(1957).
Glasmann,
sold it. uncertain character however, determination; purporting there support this evidence convey- show a it was within ance of interest in was further land to the defendant. contemplation compelled the But I am disagree with that portion of opinion time soil would sold a reasonable reverses *6 plaintiff’s prop permits court plaintiff from lower after it was removed the to eleven-year-old on erty the There was un recover autumn contract con- cerning testimony stockpiling’ ar the removal the purposes that the of soil for disputed sale. convenience commercial for defendant’s rangement was 1959; during season of during the winter There is a dilemma which must con- be contemplated. sale was interim the this (1) fronted and dealt here: either the Therefore, due after became the debt was removed what the soil under was the of time.6 Since period lapse of this agreement consignment the effect an to finder, accepted court, de fact as a trial Hopkinson it defendant under which was was removed that the soil version fendant’s if, sold; it paid to for when and as was agreement, this case separate oral under or, outright to defendant (2) was sold to deter and remanded be reversed must pay obliged Hopkinson he became to (whether the price agreed $1.60 the mine it, or within reasonable for it as took applicable) defendant was rebate findings judg- time thereafter. unpaid balance. effectively preclude court of the trial ment recovery al- plaintiff either under from plaintiff. are awarded Costs signed de- his memorandum ternative. In he stated: cision ELLETT, TUCKETT, HENRIOD opinion that is of the The Court JJ., concur. shows, clearly testimony as does ing). CROCKETT, Chief Justice (dissent- practice, pay for the [2] [1] soil as he sold the defendant Statute of Limita- it, and plaintiff claim tions would bar main part of the in accord with amI might have. trial court’s opinion affirms findings. in the is included also And due counterclaim the defendant’s denial of plead- been implicit bad limitations statute of finding trial in the 6. This 9(h), U.R. with Rule in accordance claim was ed determination court’s C.P., bar limitations, have constituted it would since statue plaintiff's begins claim. run for debt of action a cause payable. If is due and the debt when From first horn of the dilemma I can In regard question to the the pleading no proper escape. see justi- The evidence of the statute of something limitations fur- fies the finding trial court’s the de- ther should be said. as Inasmuch only “agreed pay fendant for had adopted the view that the defendant simply soil as he sold it.” a con- This is had the consignment, soil .on and was not signment arrangement. pass not required does pay plaintiff until the soil defendant, any right sold, title to the nor does not necessary for the mat- plain- payment the soil accrue ter of application of the statute of This tiff is made. brought until sale limitations to be into focus. This trial court found is true though even of the pleaded the defendant statute, to. should he adhered and the trial court made what impresses a safeguard me as finding there- dilemma: horn As to the other on. If the trial court had found or ex- it could rationalization if some pressed an find, intention to that the de- consign- finding as to that the cluded plaintiff soil, owed the for the error, and that was in arrangement ment then the question of the statute of limita- pay for the agreed to had have, tions undoubtedly could would contingency, the absolutely without have, given been specific more attention. *7 that court of the trial determination Nevertheless, my judgment, in upon the plaintiff might record, have” was “any claim state of particular the this under the case, facts of this by the determination the by of limitations should the statute trial “any court that plaintiff claim the plaintiff prevent recovering. still the from might by have” is barred the statute of lim- plaintiff’s the own In connection itations should be sustained. relating the contention, only and purpose The of the reform in adop- the thereto, to he stored was that soil was tion in 1951 what we of still call our new for the winter of 1958-1959 and to be Utah Rules of Civil Procedure was to mini- during sold that summer. If that view be mize technicalities to get make it easier to taken, purchase price have would been at justice. truth and do The most summer, payable due in or at the rules, fundamental these which new un- fall, by 1959, latest all, com- derlies and should condition them is the purpose statement of their No. 1: mencement of this action in December of Rule long any possible 1967 would be after stat- They liberally shall be construed to se- seq. ute of limitations Section et 78-12-1 just, speedy, cure inexpensive "U.C.A.1953, as ruled the trial court. every determination action.
78 issues: under the specifically about same
To the effect money the defendant owes no 8(f) : pleadings is Rule sold; plaintiff except as the soil is pleadings be so construed as All shall otherwise, if be determined should justice. to do substantial plaintiff’s claim be barred would ap- that if rules are is submitted limitations; further, the statute of their with in accordance plied in case parties, these had loose ar- who such a getting substantial proper intent of rangement themselves, they between pleading justice, the defendant’s asleep long, had let lie so not be should sufficient; of limitations statute slumbers; from their disturbed and neither determination important, the more judgment against them should have conformed issue emphasis other. (All added.) (1) which 54(c) of Rule mandate literal provides: grant shall judgment
Every final * ** -party to which
relief de-
entitled, party has not if even ** pleadings. his
manded such relief in conformity here acted trial court P.2d nothing quoted. I just see the rules COMPANY, GLENWOOD IRRIGATION properly be con- could 9(h) which in Rule corporation, Respondent, Plaintiff and doing from so him preventing sidered v. this case. MYERS, Appellant. John R. Defendant and entitled to was plaintiff was What No. 11524. and understandable
be informed in clear Supreme Court Utah. language the raised and the defense issue 3, March 1970. Royle upon. Taylor Corp., 1 relied See 279; 2d Kirkham v. Utah 264 P.2d This
Spencer, 3 Utah 2d ex- which set forth had the answer
pressly as an defense that affirmative *8 by the statute limita-
claim “is barred
tions.” my opinion the findings sustained
trial should be on both