Ahrendt v. Bobbitt
| Decision Date | 20 March 1951 |
| Docket Number | No. 7517,7517 |
| Citation | 229 P.2d 296,119 Utah 465 |
| Parties | AHRENDT, v. BOBBITT et al. |
| Court | Utah Supreme Court |
Jensen & Snow, Salt Lake City, for appellants.
Ray, Quinney & Nebeker and Albert R. Bowen all of Salt Lake City, for respondent.
Plaintiff received the claim upon which he sues by an assignment from one E. Sherman Hinds. The trial court found that the defendants owed the debt, determined that the assignment was valid, and rendered judgment for the plaintiff. On this appeal, defendants do not attack the finding that they owe the money but complain they do not owe it to the plaintiff because the assignment was invalid. The sole question raised here is concerning the validity of said assignment.
This assignment contract is dated April 23, 1948 and embraces claims against several persons or companies in addition to the defendants and also deals with certain other matters. According to its terms, the purpose of the contract was to settle accounts between the assignor Hinds and the Plaintiff Ahrendt, and it recites that, in addition to the assignment of these claims, the assignor Hinds was to pay Ahrendt an additional $12,000. Of this sum, $9,000 was to be paid immediately and the balance later. With respect to this cash payment, there was executed on the same date and appended to the assignment contract a 'Supplemental Memorandum' which provides:
The appellants' position is that this 'Supplemental Memorandum' constituted a condition precedent to the assignment contract taking effect; and, that, since the $9,000 was never paid, the assignment failed. If it had failed the cause of action would still belong to Hinds, or in fact to his trustee in bankruptcy.
The defendants were thus in a position of uncertainty as to whom they owed this debt. In asserting their defense that the assignment was invalid, defendants raise some anomalies which seem worthy of comment. Instead of the usual case where defendant contends plaintiff is suing the wrong party, we have the reverse; defendants admit owing the obligation but say that the wrong plaintiff is suing them. Carrying the anomaly one step further, defendants charge that plaintiff did not properly deal with Hinds, who assigned the claim to the plaintiff, not because plaintiff did not give Hinds proper consideration for it, but because Hinds did not give plaintiff what he promised.
With respect to this assignment, the trial court found the facts concerning its execution by the parties; that it was the only assignment, or purported assignment of this claim to plaintiff; that the $9,000 was never paid and also found: '* * * That the plaintiff and the said E. Sherman Hinds have recognized the assignment to be valid and binding and in full force and effect.'
The court then makes this conclusion of law: 'That the assignment of the account sued on herein by E. Sherman Hinds to the plaintiff on April 23, 1948 was valid and is subsisting and is in full force and effect, and plaintiff, by reason thereof, is the owner of said account and entitled to sue upon the same.'
The case is before this court on the pleadings, the findings of fact, conclusions of law and judgment, and the written assignment contract which is Exhibit 7.
In the absence of a transcript of the evidence, we must assume that it sustains the findings as made by the trial court. O'Gorman v. Utah Realty & Construction Company, 102 Utah 523, 129 P.2d 981; Clark v. Jennings, 98 Utah 230, 98 P.2d 348; and Burton v. Upper Blue Bench Irrigation District, 81 Utah 352, 18 P.2d 291. Unless some error in the determination made by the trial court is manifest from the record before us, it will not be disturbed, and that determination indicates that the court concluded that plaintiff had waived the necessity of payment of the $9,000.00 as a condition precedent to accepting the other claims.
The question then is whether this condition precedent could be waived.
The payment of the $9,000 was required of the assignor, Hinds. The benefit of such performance was for plaintiff Ahrendt, the assignee, and it was the latter who was entitled to demand performance of the condition. If the assignee desired to waive performance of the condition, it was undoubtedly within his power to do so.
As stated in 17 C.J.S., Contracts, Sec. 491, p. 993: '* * * a party to a contract, who is entitled to demand performance of a condition precedent, may waive the same, either expressly or by acts evidencing such intention; and performance of a condition precedent to taking effect of the contract may be waived by the acts of the parties in treating the agreement as in effect.'
This rule was quoted with approval in ...
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...Tri-Cities Construction, Inc. v. American National Insurance Co., 523 S.W.2d 426, 430 (Tex.Civ.App.1975); Ahrendt v. Bobbitt, 119 Utah 465, 468-69, 229 P.2d 296, 297-98 (1951). In Tri-Cities Construction, Inc. v. American National Insurance Co., the insurance company attempted to defeat its......
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