Jensen v. Anderson
| Decision Date | 15 April 1970 |
| Docket Number | No. 11367,11367 |
| Citation | 24 Utah 2d 191,468 P.2d 366 |
| Parties | d 191 Therald N. JENSEN, Executor of the Estate of Clarence Anderson, Deceased, Plaintiff and Appellant, v. Henry O. ANDERSON and Dorothy Anderson, husband and wife, Defendants and Appellants, v. Robert RADAKOVICH, Intervenor and Respondent. |
| Court | Utah Supreme Court |
S. J. Sweetring, D. A. Frandsen, Price, for appellants.
Cullen Y. Christensen, Provo, for respondent.
Plaintiff, the executor of the estate of Clarence Anderson, initiated this action to quiet title to certain property of the decedent in which Henry O. Anderson claimed an interest. Robert Radakovich filed a petition to intervene and pleaded for specific performance of an option agreement. The matter was tried before an advisory jury, the majority of which found that the signature upon the option was that of Clarence Anderson. The trial court granted intervenor specific performance. On appeal, the validity of the option agreement is challenged.
Clarence Anderson granted Radakovich an option to purchase any or all of the property owned by Anderson on September 22, 1962, for a period of six years. Anderson died July 13, 1966. Radakovich attempted to exercise the option on October 11, 1966, at which time he submitted a down payment in accordance with the terms of the option to the executor of the estate. The executor refused the tender, denying the validity of both the signature of the decedent and of the agreement.
Radakovich admitted that he drew the option agreement; so accordingly if there appear therein uncertainty or ambiguity, the contract will be strictly construed against the party who drew it. 1
Appellants claim that there was no consideration for the option. Respondent asserts that there was consideration, but irrespective of consideration the option was accepted prior to its withdrawal.
In Walker v. Bamberger, 2 this court observed:
* * * If a person offers to sell a piece of property to another, or to transfer a chose in action, and agrees to keep the offer open to a given day, or for a reasonable time, during which the person to whom it is made may accept, that is an option; and the person making the offer will be bound to keep it open if a sufficient consideration for so doing is given, but he will not be bound without such a consideration. * * *
In the instant action, if there were no consideration to support the option, the intervenor's acceptance after Clarence Anderson's death, was without legal effect; for the death of the offeror terminates the offer. 3
In the option agreement, the following was recited:
Consideration: Robert Radakovich has helped me a lot on the place building sheds, with my selling and buying plus numerous other tasks all at no cost to me, which would be great if paid for.
Intervenor asserts that these services which he performed and for which he was not paid constituted consideration to support the option. Appellant asserts that the reference in the option is to past consideration, which will not support Anderson's promise. The trial court found as a matter of law that the option was supported by valid and adequate consideration.
Two witnesses, Marchello and Valentine, testified that they had also worked on the Anderson property, for which they received no remuneration. Valentine stated that he worked on the shed as a favor to Radakovich. Marchello testified that he was never employed to work for Anderson. Intervenor admitted that he had run 20 head of cattle on the Anderson range without charge. He further testified that he had never been paid or received any money for the assistance he had rendered to Clarence Anderson throughout the years. He referred to the option as reimbursement for the work he had done.
Past services, when rendered under such circumstances as to create no legal liability, are not consideration for a subsequent promise. * * * 4
* * * Consideration, by its very definition, must be given in exchange for the promise, or at least in reliance upon the promise. Accordingly, something which has been given before the promise was made and, therefore, without reference to it, cannot, properly speaking, be legal consideration. * * *
* * * The doctrine that past consideration is no consideration represents the overwhelming weight of authority and is almost universally followed. This has been the law since early times. 5
Respondent asserts that an exception to the foregoing principle is applicable to the instant action.
A past consideration, given on a request of such a nature that if complied with the law would imply a promise to pay will sustain a promise founded on it; but if no promise could be implied from the request, as where the services were understood to be gratuitous, then a subsequent express promise is without consideration, and if the express promise is different from what the law would have implied it is not enforceable. The authorities which speak of services rendered on request as supporting a promise must be confined to cases where the request implies an undertaking to pay, and do not mean that, what was done as a mere favor can be turned into a consideration at a later time by the fact that it was asked for. 6
Respondent contends that the court could reasonably find an implied request for his...
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