Hellstrom v. Osguthorpe

455 P.2d 28, 22 Utah 2d 440, 1969 Utah LEXIS 636

• Court: Utah Supreme Court
• Decided: May 29, 1969
• Docket: No. 11462
• Status: Published

Opinions

TUCKETT, Justice.

The defendant is here seeking a reversal of a summary judgment entered by the court below in favor of the plaintiff.

During the month of January 1967 the defendant delivered to the plaintiff a truck for the purpose of having repairs made to the engine as well as other portions of the vehicle. After the truck engine had been partially disassembled the plaintiff reported to the defendant that the estimated cost of repairs would be in the neighborhood of between $1800 and $1900. The defendant .authorized the plaintiff to proceed with the repairs. Several days later the plaintiff advised the defendant that the cost of repairs would exceed his original estimate by the sum of between $400 and $500. It is the defendant’s contention and he testified “by way of a deposition that he authorized the repairs upon the assurance by the plaintiff that the cost would not exceed the last estimate.

On or about February 1, 1967, Clarence •Osguthorpe, an employee of the defendant; went to the plaintiff’s place of business to pick up the truck. At that time Clarence Osguthorpe signed an invoice or repair order which had not been completed but which contained a promise in the following language:

Purchaser agrees to pay attorney fees, legal costs, and all expenses involved in the event legal action is necessary for the collection of this repair order. Maximum legal rate of interest will be charged on all past due accounts.

Your signature hereunder constitutes acceptance of this proposal.

The defendant here claims that his employee, Clarence Osguthorpe, was. .without authority to obligate him to pay attorney’s fees and interest. There .is no showing in the record that the employee had such authority.

On October 6, 1967, the defendant paid to the plaintiff the sum of $500 upon the account. The defendant by his answer claims that the repairs made by the plaintiff were not satisfactory and that the vehicle did not perform properly after the repairs had been made.

It is the plaintiff’s claim before this court' that the rendition of the account by the plaintiff and a partial payment by the defendant amounted to an account stated and that there was no genuine issue of fact before the trial court. With this we cannot agree. It is quite clear that the defendant did not assent to the correctness of the account and the fact that he made a part payment is insufficient to show that there was in fact an account stated.¹

We are of the opinion that the record shows that there were issues of fact before the trial court which could only be determined by a trial. It would seem that there was an issue of fact to be determined by the fact finder as to whether or not there was an express contract wherein the parties agreed to a fixed price for repairing the vehicle. There is also an issue of fact as to whether or not the cost of repairs were reasonable. Then too there is an issue of fact as to whether or not the defendant’s employee had authority to bind the defendant to pay a reasonable attorney’s fee and interest.

We are of the opinion that the case should be remanded to the trial court for trial upon the issues of fact as above specified. It is so ordered. Appellant is entitled to costs.

CROCKETT, C. J., and CALLISTER and ELLETT, JJ., concur.

1 . Salt Lake Engineering Works v. Utah Concrete Pipe Co., 49 Utah 53, 161 P. 927; Givens v. Parker (Okl.1953), 258 P.2d 936; Dobson, Admr. v. Watson, 110 Tex. 355, 220 S.W. 771, 11 A.L.R.. 583; 6 Corbin on Contracts, Sec. 1313, p. 272.