Condas v. Adams, 9800
| Decision Date | 29 January 1964 |
| Docket Number | No. 9800,9800 |
| Citation | 388 P.2d 803,15 Utah 2d 132 |
| Parties | d 132 Demetra J. CONDAS, Plaintiff and Respondent, v. Andrew C. ADAMS and Grace R. Adams, Defendants and Appellants. |
| Court | Utah Supreme Court |
Robert W. Hughes, Salt Lake City, for appellants.
Brigham E. Roberts, Mary Condas Lehmer, Salt Lake City, for respondent.
Plaintiff brought this action for rent due under the terms of a two-year written lease of some farm land. Defendants admitted the nonpayment of the rent, but alleged that plaintiff was not entitled to same because of certain fraudulent misrepresentations. They counterclaimed for damages suffered by reason of the alleged fraudulent misrepresentations.
The lower court dismissed the counterclaim, granted plaintiff judgment for the rent and defendants now appeal.
The issues raised by the counterclaim, as set forth in the pretrial order, were whether plaintiff and her agents were guilty of fraud in falsely representing to defendants that (1) the land leased had raised in years past 90 tons of hay per year and would produce a like amount for defendants; and that (2) plaintiff had adequate water 1 for the property to sufficiently water the land to produce 90 tons of hay per year.
So far as the record discloses, the plaintiff never challenged the sufficiency of the counterclaim, nor did she make any motions for dismissal or summary judgment. However, prior to the commencement of the scheduled jury trial, a conference was had in the trial judge's chambers at which time the judge asked counsel for defendants what his proof would show regarding alleged misrepresentations. After the attorney for the defendants outlined his proposed evidence, the trial judge, upon his own motion, dismissed the counterclaim and, upon stipulation of both parties, the jury was dismissed. Thereupon the judge heard evidence on other phases of the case not pertinent to this appeal.
In the instant case the burden was upon the defendants to prove the fraud charged by clear and convincing evidence. 2 The question as to whether or not the evidence is clear and convincing is usually determined by the trier of the facts. 3 Furthermore, the trial court's dismissal of the counterclaim is akin to the granting of a summary judgment and, therefore, the proposed proof, and every inference arising therefrom, must be viewed in the light most favorable to the defendants. 4 It is with these legal principles in mind that the defendants' offer of proof must be reviewed.
First, with regard to the alleged misrepresentation of the productivity of the land: It was stated that defendants advised plaintiff's agent that they owned a dairy farm in Heber, Utah, and that it was necessary for them to secure an additional 100 tons of hay for its operation. Plaintiff's agent advised them that the land offered for lease had produced and would produce 90 tons of hay per year. The court then inquired if defendants could prove that the land had never produced that amount of hay (emphasis added). Counsel replied that he had proof that the land had not produced 90 tons during the years 1959, 1960, and 1961. (The lease was dated February 8, 1960). He further stated that he was confident that one of his witnesses could testify that the land had never produced 90 tons of hay in a year, if the court deemed such proof necessary, and that he could possibly secure a previous owner to so testify. The court then asked the question, 'Prior to that time (1959) you can't say and have no proof now to show what the actual yield has been?' To which counsel replied, 'None other than I have stated.' The court then held that defendants had not stated into the record any proof that the land had not yielded 90 tons of hay and therefore they had no cause of action with respect to this alleged misrepresentation.
Second, with respect to the alleged misrepresentation as to the water supply: At the beginning of the discussion of this matter, the court made the following observation:
Counsel for defendants then stated that it had been represented to them that plaintiff had 25 shares in an irrigation company which entitled the land to a water supply sufficient to produce the 90 tons of hay, when, in fact, defendants could prove that the water supply was insufficient during their occupancy and had been for some years prior thereto. The court held that this was not a material representation of an existing fact.
While it is true that there is authority to the effect that representations as to the productivity of land are...
To continue reading
Request your trial
-
Iadanza v. Mather
...of reliance, character of representations, and circumstances of alleged misrepresentation present jury questions); Condas v. Adams, 15 Utah 2d 132, 388 P.2d 803, 805 (1964) (whether seller misrepresented particulars of property presented question for jury); accord St. Joseph's Hosp. and Med......
- Brand v. J. H. Rose Trucking Co.
-
Fisher v. Davidhizar
...surrounding the statements must be weighed to determine whether they are statements of fact or opinion. See Condas v. Adams, 15 Utah 2d 132, 388 P.2d 803, 805 (1964). Generally, “[w]hether a representation is one of opinion or one of fact must be determined not only by the subject matter, b......
-
Theros v. Metropolitan Life Ins. Co.
...v. Family Life Ins. Co., 60 Wash.2d 91, 376 P.2d 152 (1962).1 See Morris v. Farnsworth Motel, 123 Utah 289, 259 P.2d 297.2 Condas v. Adams, 15 Utah 2d 132, 388 P.2d 803.3 See Tangren v. Ingalls, 12 Utah 2d 388, 367 P.2d 179.4 Miller v. Commonwealth, 172 Va. 639, 2 S.E.2d 343.5 E.g. the so-c......
-
Article a Primer on Pleading Fraud Claims in Utah
...“by the subject matter,…the form of the statement, the attendant circumstances, and the knowledge of the parties.” Condas v. Adams, 388 P.2d 803, 805 (Utah 1964). Misrepresentations of law or of the legal effects of contracts are also not categorized as fraudulent, Gadd v. Olson, 685 P.2d 1......