Bullfrog Marina, Inc. v. Lentz, 12503
Decision Date | 20 September 1972 |
Docket Number | No. 12503,12503 |
Citation | 28 Utah 2d 261,501 P.2d 266 |
Parties | d 261 BULLFROG MARINA, INC., Plaintiff and Appellant, v. Gilbert M. LENTZ, Defendant and Respondent, and Cross-Appellant. |
Court | Utah Supreme Court |
Biehle, Jones, Murphy & Haslam, Irving H. Biehle, W. Jeffrey Fillmore, Salt Lake City, for plaintiff and appellant.
Duane A. Frandsen, Price, for defendant and respondent.
Plaintiff initiated this action, alleging that it was a lessee of three houseboats under a written agreement for a term of two years and that defendant, lessor, by removing said boats from plaintiff's dock had converted plaintiff's possessory interest therein. In a second cause of action, plaintiff alleged that it had entered into an employment contract with defendant which defendant had breached, resulting in damage to plaintiff. Plaintiff further filed an affidavit for attachment of the houseboats and a housetrailer on the ground that defendant was a nonresident of this State, Rule 64C(a), U.R.C.P.
The trial court released the attachment on the basis that defendant was a resident of this State within the meaning of the rules of attachment. The trial court further held that the employment contract and lease between the parties were terminated and were of no further force or effect and that neither party had any right, title or interest thereunder. The trial court awarded judgment against defendant for a certain sum of money collected and retained by defendant to settle the account between the parties. Plaintiff was awarded $1000 for the value of certain items of personal property consisting of furnishings and equipment located on the boats at the time defendant removed them. The trial court determined that neither party was entitled to attorney's fees; the other provisions of the judgment are not challenged on appeal and will not be related herein. Plaintiff appeals, and defendant cross-appeals.
Plaintiff, a corporation, was a concessionaire of the National Park Service and had the exclusive right to operate tourist facilities at Bullfrog Basin on Lake Powell in San Juan County, Utah. Under plaintiff's contract with the government, if plaintiff entered into a subconcession contract with anyone, the government, in addition to its regular franchise fees, was entitled to 50 per cent of the compensation received by plaintiff. Furthermore, any contract or agreement which plaintiff proposed to enter with respect to the exercise by others of any privilege granted under the concession contract was required to be submitted to the government for approval.
In 1969 plaintiff determined that as part of its service it would like to rent houseboats to the public at Bullfrog. Defendant was desirous of operating a houseboat business on Lake Powell. The parties entered negotiations to initiate the houseboat operations. They deemed a successful operation would entail the use of six houseboats; and each party was to procure three, and defendant was to manage the operation, including the advertising, reservations and bookkeeping. They commenced operation in May of 1969 under an oral agreement, which they desired reduced to writing. Since the parties desired to avoid the financial consequences which would occur if the National Park Service deemed defendant a subconcessionaire, the parties subsequently executed two written contracts, which were back-dated to May 1969. One was an employment contract, wherein plaintiff employed defendant to operate a houseboat rental service with his remuneration to be a share of the net profits; this agreement was for a term of two years but could be terminated for cause by either party by a two-week written notice. Among the causes enumerated, which granted the employee the right to terminate, was unreasonable restrictions in the performance of work, with it being understood that the employee was in general to manage the division. The employment contract was signed by the parties on July 31, 1969, but was dated to May 19, 1969. The second written agreement was designated a lease, wherein defendant leased plaintiff three houseboats for a term of two years. The lease recited that plaintiff represented that it had no experience in the rental of houseboats and desired to lease them on a use basis; the lessor was to receive 40 per cent of the rental. This agreement included a provision for attorney's fees resulting from a breach. The parties dated this agreement May 31, 1969, but it was actually signed either August 19, 1969, according to plaintiff, or October 10, 1969, according to defendant.
Defendant completed his duties at Bullfrog for the 1969 boating season on October 15, and departed to travel through the western United States and Mexico. On approximately November 23, 1969, defendant returned to Bullfrog and removed his three boats to Hall's Crossing across Lake Powell. Subsequently he submitted a letter, dated November 28, 1969, to plaintiff terminating both the employment agreement and the lease. Defendant asserted that he had cause to terminate by reason of plaintiff's diverting control of the advertising and reservations from him. Furthermore, plaintiff had failed to submit the contracts to the government, although the National Park Service had sent a letter July 15, 1969, making inquiry and stating that its clearance was necessary to ensure that plaintiff was not entering into a subconcession contract. Defendant's position was that plaintiff was eliminating him from participating in the 1970 boating season, i.e., plaintiff commenced using defendant's trade name 'Aqua Cruz' and receiving the reservations directly. By plaintiff's procrastination in submitting the agreements to the government, defendant was left without knowing whether he would be able to conduct the operations in 1970.
On appeal, plaintiff asserts that the trial court erred in its determination that based upon all the facts and circumstances in evidence the lease and employment contract should be considered together as one contract and each part was interdependent upon the other. Plaintiff urges that the lease was a separate and distinct agreement and that thereunder it was entitled to possession of the houseboats for two years and that defendant was liable in damages for the conversion of plaintiff's possessory interest.
To substantiate its argument plaintiff cites the principle that when parties have reduced to writing what appears to be a complete and certain agreement, it will be conclusively presumed, in the absence of fraud, that the writing contains the whole of the agreement between the parties; and that parol evidence of contemporaneous conversations, representations or statements will not be received for the purpose of varying or adding to the terms of the written agreement. 1
The foregoing principle is correct when applied to an integrated contract. The issue of this action is whether the lease represented a final and complete expression of the agreement of the parties or was merely a written memorandum by which part of the contract may be proved.
Section 228, Restatement, Contracts, states:
An agreement is integrated where the parties thereto adopt a writing or writings as the final and complete expression of the agreement. An integration is the writing or writings so adopted.
Comment a. of Section 228 explains that integrated contracts must be distinguished from written memoranda by which contracts may be proved. An essential element of an integration is that the parties shall have manifested assent not merely to the provisions of their agreement but to the writing or writings in question as a final statement of their intentions as to the matters contained therein. Whether a document was or was not adopted as an integration may be proved by any relevant evidence.
Whenever a litigant insists that a writing that is before the court is an integration and asks the application of the parol evidence rule, the court must determine as a question of fact whether the parties did in fact adopt a particular writing or writings as the final and complete expression of their bargain. 2 In determining the issue of the completeness of the integration in writing, evidence extrinsic to the writing itself is admissible. Parol testimony is admissible to show the circumstances under which the agreement was made and the purpose for which the instrument was executed. 3
In the instant action the trial court found that after full consideration of the entire transaction, including the purpose to be served by the lease and the employment contract, defendant would not have leased the boats to plaintiff, unless he could operate the houseboat rental service. The trial court concluded that the lease and employment contract bore a relationship to one another and should be considered as one agreement. Since the issue of whether the lease was an integration was a factual question, and there was substantial evidence to support the determination of the trial judge, his finding must be sustained. The trial court did not err in following the rule of law that where two or more instruments are executed by the same parties contemporaneously, or at different times in the course of the same transaction, and concern the same subject matter, they will be read and construed together so far as determining the respective rights and interests of the parties, although they do not in terms refer to each other. 4
Plaintiff further contends that the trial court erred in its interpretation of the provisions of the employment contract under which defendant's incentive commission was calculated.
The employment contract provided that defendant would be paid an incentive commission equal to 80 per cent of the net income for the calendar quarter. The contract specified that net income should be determined by deducting from the gross income all costs and expenses of the operation of the houseboat rental service. The contract further defined costs...
To continue reading
Request your trial-
Martinez v. Bynum
...Cf. n. 13, infra. 12. See, e.g., Kiehne v. Atwood, 93 N.M. 657, 662, 604 P.2d 123, 128 (1979); Bullfrog Marina, Inc. v. Lentz, 28 Utah 2d 261, 269-270, 501 P.2d 266, 272 (1972); Estate of Schoof v. Schoof, 193 Kan. 611, 614, 396 P.2d 329, 331-332 (1964); Hughes v. Ill. Pub. Aid Comm'n, 2 Il......
-
Kenai Oil and Gas, Inc. v. Dept. of Interior
...they will be read and construed together to determine the respective rights and interests of the parties. Bullfrog Marina, Inc. v. Lentz, 28 Utah 2d 261, 501 P.2d 266, 271 (1972). Here, the interpretation of leases 2667 and 2660 has significant relevance to the meaning of the provisions of ......
-
Jensen v. W. Jordan City
...the respective rights and interests of the parties, although they do not in terms refer to each other. Bullfrog Marina, Inc. v. Lentz , 28 Utah 2d 261, 501 P.2d 266, 271 (1972), disapproved of on other grounds by Tangren Family Tr. v. Tangren , 182 P.3d 326 (Utah 2008). West Jordan contends......
-
Fairway Builders, Inc. v. Malouf Towers Rental Co., Inc.
...all of the contract documents described are parts of One contract, and must be construed as a whole, citing Bullfrog Marina, Inc. v. Lentz, 28 Utah 2d 261, 501 P.2d 266 (1972). The contention that there is only one contract is incorrect, for Malouf and Fairway are the only parties to the of......