Finlayson v. Brady, 7713
| Decision Date | 29 January 1952 |
| Docket Number | No. 7713,7713 |
| Citation | 121 Utah 204,240 P.2d 491 |
| Parties | FINLAYSON et al. v. BRADY et al. |
| Court | Utah Supreme Court |
F. Robert Bayle, Salt Lake City, for appellants.
Victor G. Sagers, Sandy, for respondents.
Appeal from a judgment on a directed verdict nunc pro tunc, awarding defendants a money judgment and attorney's fees on their counterclaim, and no cause of action on plaintiffs' complaint, in an action where plaintiffs claim damages for the price of alleged defective gas heaters installed by defendants in plaintiffs' fourplex apartment house, and for loss of rentals resulting therefrom when tenants allegedly vacated on account of the heaters, and where defendants countered for the balance of the purchase price of equipment sold under a conditional sales contract, included in which were the questioned heaters. The judgment is reversed, and a new trial ordered, each side to bear its own costs.
Plaintiffs claim the court erred 1) in directing a verdict for defendants; 2) in awarding attorney's fees to defendants; and 3) in directing a verdict nunc pro tunc.
The voluminous record contains considerable conflicting evidence, particularly as to when the contract was executed, the balance due thereon, whether the type of heater intended was installed, whether defendants were obliged to install according to certain standards, whether gas leaked through the heaters, whether the heaters installed by defendants or the flues constructed by plaintiffs were primarily responsible for leakage, whether tenants were or were not made ill by escaping gas, whether plaintiffs solicited defendants for the installation or vice versa, when and how plaintiffs complained of the heaters the condition of plaintiffs' property at time of installation, whether the flues were adjustible for easy and proper installation, the reasons for tenants leaving, etc.,--all matters ordinarily left to the jury for determination.
In directing a verdict, this court has held, as the authorities generally hold, that the evidence is to be examined in a light most favorable to the party against whom the verdict is intended, and that it is not the province of the court to weigh or determine the preponderance of the evidence. 1
We are convinced from the whole record that there was substantial contradictory evidence on both sides which, in recognition of well-established rights guaranteed by our state constitution, statutes and rules, 2 and the authorities generally, 3 required giving the case to the jury.
Without unduly burdening this opinion with all the evidence favoring plaintiffs, we point out significant portions thereof. After plaintiffs complained about the heaters, defendants removed them twice for repairs in an effort to eliminate escaping gas. Leakage continued after reinstallation. Different means of discharging the products of combustion were attempted. Defendants' witnesses admitted failure to install in accordance with gas company standards. The gas company rejected the heaters. Some tenants suffered headached from the escaping gas. One called the gas company 15 times. During a period of a title over a year, 16 tenants moved in and out of the 4 apartments. One of the heaters blew up. A gas company employee indicated the heaters were defective. The record points at least to an implied reliance by plaintiffs on the judgment of defendants in installing the heaters, and not upon the trade name of the heaters, all of which makes this case strikingly similar to one heretofore decided by this court. 4
The defendants undertook the installation under a one-year express guarantee. On pre-trial the parties stipulated that 'there was an implied warranty that the property described in plaintiffs' complaint would be fit for the use for which it was intended.' The trial court, at the end of the trial, apparently conceded a breach of such warranty when in commenting on whether the property was fit for the purpose intended he concluded that ...
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Hewitt v. General Tire & Rubber Co., 8038
...from a directed verdict, it is fundamental that we review the evidence in the light most favorable to the losing party. Finlayson v. Brady, Utah, 240 P.2d 491. In Hooper v. General Motors Corporation, supra , and followed in Northern v. General Motors Corporation, supra, the proof necessary......
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...761 P.2d 14 (1988). [19]Koer v. Mayfair Mkts., 431 P.2d 566 (1967). [20]Anderson v. Cribble, 513 P.2d 432 (1973). [21]Finlayson v. Brady, 240 P.2d 491 (1952). --------- ...