Bennett Leasing Company v. Ellison

387 P.2d 246, 15 Utah 2d 72, 21 A.L.R. 3d 1, 1963 Utah LEXIS 263

• Court: Utah Supreme Court
• Decided: November 26, 1963
• Docket: 9824
• Status: Published

Opinions

CROCKETT, Justice.

Defendant, David J. Ellison, appeals from a judgment against him for $1,144.52 for use of a 1959 Ford Ranch Wagon furnished by the plaintiff, Bennett Leasing Company.

Plaintiff’s complaint contained two counts: In the first it sought to recover upon an express contract leasing the car for 24 months at the rate of $79.49 per month, alleging use for 22 months; and also for $173.35 for repairs, $33.48 for “late” charges, and $130.00 for adjustment for the time remaining when the car was repossessed, all as provided under the terms of the contract; and on its second count, for the reasonable value of the use of the car.

The pretrial was before Judge A. H. Ellett. When it appeared that the proposed written contract had not been signed, he recited in the pretrial order that:

“The plaintiff admits that the contract upon which it claims * * * was not in writing. The court therefore holds as a matter of law that said count is barred by the statute of frauds.¹

“The only issues to be 'determined between the plaintiff and defendant, David J. Ellison, are as follows:

“1. Was the contract made with David J. Ellison or with Duane T. Cardall ?

“2. What would be the reasonable value of the rental of the automobile ?”

The case proceeded to trial before Judge Joseph G. Jeppson, sitting without a jury. The findings recite that:

“ * * * the court having heard the testimony, and having examined the proofs * * * makes its findings of fact as follows:

“1. That on or about September 8, 1959, Defendant David J. Ellison leased from Plaintiff a 1959 Ford Fordor Ranch Wagon automobile, under an oral lease for approximately 24 months.

“2. That the Ford automobile described in Paragraph 1 above' was furnished by Plaintiff to Defendant David J. Ellison, and that said Defendant used the automobile for approximately 22 months.

“3. That Plaintiff is entitled to the reasonable value of the use of the said vehicle for 22 months and that a reasonable value for use of the vehicle is. $1,748.76. ...

,• “4. That' periodic' payments made on the. .said lease totalled $604.24.

,. “From the foregoing. Facts, the court concludes: . ■ .

“1. That Plaintiff, Bennett Leasing Company, is .entitled to .judgment against Defendant David J. Ellison in the sum of $1,144.52.”

The court .did not. allpw the plaintiff to recover for the other items of damages claimed under the express lease.

Che argument that it is not shown that;-defendant Ellison was personally ' responsible for the rental of' the car is' untenable- When , the appellant attacks the judgment on the. ground .that the evidence does, not support, the findings, he has the burden of bringing a transcript of the evidence adduced at the trial to .this court so the merit of his contention can be ascertained. The record brought to fhis court consists only- of the court file containing the usual various pleadings, motions, orders, findings and judgment; arid supplemented by- interrogatories, ^requests for admissions and two contracts introduced in. evidence. But-there is no reporter’-s .transcript of the evidence or of what happened at the proceedings at which the court recites it “heard the testimony.” In the absence of a transcript of the evidence we are obliged to assume that it would support the findings.²

Defendant arg'ues that in arriving at the amount of $1,144.52 the court appears to have-done a contradictory thing: in that, whereas Judge Ellett had ruled that, the proposed express contract was invalid because of the statute of frauds, Judge Jepp-son must have looked .to it as evidence of the rental value because the amount recited in the contract, $79.49 per month, less the amount paid, computes to the amount of the judgment. It is defendant’s position that such contract haying been stricken down, it could not properly be considered for any purpose; and that consequently there is no evidence of rental value upon which to base the court’s finding.

The answer to this contention is twofold: the first is as stated in the point discussed above: there being no transcript of' the evidence, we must assume ‘it- supports the finding. The second is that even though the proposed' agreement between the parties was not signed and was therefore barred from, enforcement by the statute of frauds, that does not prevent the trial court from considering the proof, concerning the proposed agreement between the parties as at least some evidence of the rental value.³ The' fact that this was an odd amount of $79.49 per month does not necessarily preclude the court from adopting that figure, if it believed, as it is apparent that it did, that such was the reasonable charge for the use of the car.

Nor do we find merit in the contention that inasmuch as the proposed written contract to rent the car was determined to be unenforceable, the plaintiff therefore cannot recover on the quantum meruit count. For the purpose of ascertaining whether the plaintiff is entitled to some relief, the proposed express contract can be bypassed just as the trial court did. The fact that the parties attempted but failed to complete a written contract does not foreclose the possibility that other contractual obligations could arise between them. Regardless of the abortive express contract, the fact cannot be escaped that the trial court found that the defendant Ellison had used the plaintiff’s car for 22 months. The contract had thus been performed to that extent; and Ellison had to that extent used the plaintiff’s car. In equity and good conscience he should not be permitted to accept this benefit, then invoke the statute of frauds with the result of cheating the plaintiff out of payment for the car it furnished him.

We are in accord with authorities which indicate that where one party has furnished and the other has accepted and used goods or services, even though pursuant to a contract which may be barred from enforcement by raising the statute of frauds, the former may nevertheless; recover from the latter for the reasonable-value of such goods or services.⁴' Accordingly, in the instant case the trial court very properly charged the defendant for the use of the car, less credit for the amounts which had been paid on the account. ‘ ;

Judgment affirmed. Costs to plaintiff (respondent).

McDONOUGH and WADE, JJ:,”conr cur.

1 . Sec. 25-5-4, U.C.A.1953 provides that certain agreements are void: * * * (1) Every agreement that by its terms is not to be performed within one year from the making thereof.

2 . See Watkins v. Simonds, 14 Utah 2d 406, 385 P.2d 154; Dahlberg v. Dahlberg, 77 Utah 157, 292 P. 214, in which this .court held that where, .the '.evidence was not brought to the Supreme Court the findings of fact were unassailable;’ see also In re Voorhees Estate, 12 Utah 2d 361, 366 P.2d 977; Steiner v. Steiner, 160 Cal.App.2d 665, 325 P.2d 109; Teets v. Richardson, 131 Colo. 592, 284 P.2d 233.

3 . That evidence of an unenforceable oral contract fixing prices for services may be considered as some evidence of the value of the services, see McGilchrist v. F. W. Woolworth Co., 138 Or. 679, 7 P.2d 982; and 49 Am.Jur. 880, Statute of Frauds, Sec. 573.

4 . For authorities in accord ef. Puetz v. Carlson, 139 Mont. 373, 362 P.2d 742; Orella v. Johnson, 38 Cal.2d 693, 242 P.2d 5; and Baugh v. Darley, 112 Utah 1, 184 P.2d 335; Fabian v. Wasatch Orchard Co., 14 Utah 404, 125 P. 860; see 49 Am.Jur. 862, Statute of Frauds, Sec. 556.