Jackson v. Cope

• Decision Date: 04 February 1954
• Docket Number: No. 8012,8012
• Citation: 1 Utah 2d 330,266 P.2d 500
• Parties: d 330 JACKSON et ux. v. COPE et al.
• Court: Utah Supreme Court

Page 500

266 P.2d 500

1 Utah 2d 330

JACKSON et ux. v. COPE et al.

No. 8012.

Supreme Court of Utah.

Feb. 4, 1954.

F. Robert Bayle, Salt Lake City, for appellants.

Young & Young, Salt Lake City, for respondents.

WADE, Justice.

Appeal from a judgment in favor of the Jacksons in an action commenced by them for damages caused by the Copes, a partnership doing business as The Cope Brothers Lumber Co., negligently signing a blank lien waiver for $700 and delivering it to the contractor building a home for the Jacksons and thereby enabling the contractor to obtain that sum from them. The loss resulted from the bankruptcy of one Holmes who was a building contractor for the Jacksons and others and who was indebted to the Cope Brothers Lumber Co. for materials furnished him.

At the pre-trial it was admitted that appellants delivered to respondents' contractor lien waivers upon their property in the sum of $700 and that there was a custom in the community that banks or trust companies holding money for the builders of homes would pay the subcontractors upon receipt of a lien waiver from the various materialmen and subcontractors working on the building.

After trial the court sitting without a jury as finder of the facts, found that the Jacksons had entered into a contract with Holmes to build them a home and had made arrangements with the Union Trust Co. of Salt Lake City, Utah, to have it pay Holmes at different stages of construction of their home upon his presentation of lien waivers. That appellants executed a lien waiver upon respondents' premises in the amount of $700 which was presented to the Union Trust Co. and that amount was thereupon paid to Holmes from their account. That appellants knew at the time the lien waiver was executed of the custom of banks and trust companies to pay contractors sums of money on building accounts when lien waivers were presented. The court further found that appellants did not furnish any materials or render any services for the construction of respondents' home and had received $700 from the funds belonging to them without furnishing them materials or services or for any other consideration, thereby damaging respondents in that sum.

Appellants contend that these findings are unsupported by the evidence and the court therefore erred in making them and that it also erred when at the conclusion of respondents' case it allowed them to amend the pre-trial order by inserting the issue of money had and received for no consideration.

The evidence disclosed that on October 27, 1950, Cope Brothers Lumber Co. received in the mail from Holmes a check in the sum of $700 and a blank lien waiver addressed to the Union Trust Co. Appellants knew of the custom of banks or trust companies to pay a contractor upon presentment of lien waivers. At the time this check was received Holmes owed the appellants about $3,900 for materials furnished to him to be used on various buildings he was constructing at that time and which were delivered to him by appellants and taken by him or his agents to a warehouse Holmes maintained and from there to wherever he wanted to use them. Upon receipt of the check and blank lien waiver one of the appellants inserted the sum received, signed the waiver and returned it to Holmes who then filled in the blanks with respondents' names and address and presented it to the Union Trust Co., where he received $700 from respondents' fund. There was no evidence that any of the materials supplied by appellants were used in respondents' home whereas one of the respondents testified he went to his home every day it was being built and he saw that the materials were delivered by another lumber company. There was also evidence that the amount of materials ordinarily used in a home the size of respondents' was delivered by this other lumber company. This evidence was sufficient to sustain that part of the court's findings that appellants did not furnish any materials for respondents' home or give any other consideration to them for the $700 they received and for which the lien waiver was given which was later presented for payment by Holmes from respondents' fund with the Union Trust Co., knowing that there was a custom that upon presentation of a lien waiver a bank or trust company would pay the contractor the amount shown therein. However, there was no evidence appellants received $700 from respondents' fund. What appellants did was to make it possible for respondents' contractor to get that sum from them.

The court failed to make a finding that appellants were negligent in issuing the lien waiver in blank upon receipt of the check for $700, therefore its judgment was not based on that issue as originally pleaded by respondents but must necessarily have been based on a cause of action for money had and received or 'unjust enrichment.' It is therefore necessary to determine if the court erred in allowing the pre-trial order to be amended to include that issue and if it did not err in that respect, whether it erred in concluding from the evidence that respondents were entitled to a judgment against appellants because they had given no consideration to them for the $700 they received from Holmes.

Appellants argue that the court erred in allowing the amendment after respondents had rested because they had made an election to try their case on a tort and they therefore were precluded from changing their theory to an action in assumpsit, that being an entirely new and different cause of action. This court discusses when and what amendments may be made in pleadings in Hartford Accident & Indemnity Co. v. Clegg, 103 Utah 414, 135 P.2d 919. As my concurring opinion on pages 427, 428 and 429 of 103 Utah, on page 925 of 135 P.2d reports points out:

'* * * amendments should be...