Kesler v. Rogers, 13915
| Decision Date | 24 October 1975 |
| Docket Number | No. 13915,13915 |
| Citation | 542 P.2d 354 |
| Parties | Marion L. KESLER and Gregory L. Kesler, a minor, by Marion L. Kesler, his guardian ad litem, Plaintiffs and Respondents, v. Willard B. ROGERS and Rockefeller Land and Livestock Company, Defendants and Appellants, and Edward B. Rogers et al., Defendants. |
| Court | Utah Supreme Court |
Robert C. Cummings, Mark S. Miner, William H. Henderson, Harley W. Gustin of Gustin & Gustin, Salt Lake City, for defendants-appellants.
Robert S. Campbell, Jr., Philip C. Pugsley, Salt Lake City, for plaintiffs-respondents.
Plaintiff Marion L. Kesler sued contesting ownership to a tract of 318 acres of ranch-farm land near Kanosh in Millard County, and to cattle and other personal property; and also asked for punitive damages against defendant Willard Rogers, alleging wilful and malicious conduct in claiming ownership of the land and removal of the cattle. The case being in equity, there was an advisory jury. 1 They answered interrogatories generally in favor of the plaintiff. Pursuant thereto, the court made a memorandum decision, declaring ownership of the property in question in the plaintiff, and awarded $25,403.17 for the taking of plaintiff's cattle, and other items of damages: and also awarded $10,000 punitive damages against the defendant.
Defendant appeals, relying on a written conveyance of the property in question and contending that extraneous proof that the conveyance was only a security agreement was violative of the parol evidence rule and the statute of frauds; and that in any event he had no prior notice thereof and was thus an innocent purchaser. He assigns error in connection with the instructions given the jury; and also attacks the award of $10,000 punitive damages as unjustified and excessive.
It seems necessary and appropriate to reiterate the oft-stated rule of review: that we are obliged to survey the record, not as the defendant views the facts from his defensive position, but in the light favorable to the findings made by the advisory jury and to the findings and decision made thereon by the trial court. 2
In July 1969, Mr. Kesler became the sole purchaser (by assignment from co-purchaser associates) of the property in controversy here, together with a nearby 480-acre tract, from Grant V. and Grace W. Staples. Conveyances of all of the aforementioned property were placed in escrow pending completion of performance of the contract by Mr. Kesler. This is hereinafter referred to as the Staples escrow.
Prior to that time plaintiff Kesler had been approached by an agent of Mr. Walter Kershaw, 3 who had acquired the land adjoining the 480-acre tract and was interested in purchasing the latter tract to add to his farm-ranching operation. Pursuant to discussions, these parties, Kesler and Kershaw, entered into an agreement by which Kershaw was to purchase the 480-acre tract. Inasmuch as that tract was included in Kesler's purchase from Staples, and thus in the Staples escrow, a problem existed as to how Kesler would assure marketable title to Kershaw in the event Kesler should default on his contract with Staples. They agreed to handle this by having Kesler transfer his entire purchase under the Staples escrow to insure that the title to the 480-acre tract would later be cleared and transferred to Kershaw; and that further, as soon as title to the 480-acre tract had been conveyed to Kershaw, his security interest in the remainder of the Staples escrow owned by Kesler would terminate.
A fundamental difficulty in this case is that the documents used in implementing the foregoing agreement did not spell out the security aspect of the agreement just recited, but simply recited conveyance of the property to Mr. Kershaw. The further complication is that when Mr. Kershaw later decided to sell his holdings to defendant Robers, in December 1970, the documents were not prepared in accordance with the understanding between the parties, but the descriptions were copied from those of the first transaction. They therefore purported to transfer not only the 480-acre tract, but also the other real and personal property contained in the Staples escrow. 4
A few days after this had occurred, defendant Willard Rogers, without any notice to Mr. Kesler that he claimed the cattle, and apparently acting upon the assumption that the conveyance to him covered the cattle included in the Staples escrow, engaged the aid of several other people, including the county sheriff, to go and take 78 cows and one calf which belonged to Kesler (this included ten head belonging to Kesler's minor son Gregory). Persisting in conduct of the same character, the following month, in January 1971, Defendant Rogers went to the Delta livestock auction, where Mr. Kesler was selling two other cows and their calves, which were branded with the Staples 'K' brand. He represented to the auctioneer and the brand inspector that the brand was registered to him; and the proceeds of the sale were held to ascertain who owned the stock. Upon checking with the State Brand Supervisor, the auctioneer learned that defendant Rogers' claim was false; and that he did not own the 'K' brand, nor the livestock.
The jury answered special interrogatories indicating their findings of these facts: that only the 480-acre tract was intended to be conveyed from Kesler to Kershaw; that the balance of the real and personal property purportedly transferred by the conveyances was so described only for security purposes; that defendant Rogers had knowledge of these facts and of Kesler's interest therein before he received his conveyances from Kershaw; and that Rogers, with knowledge of these facts, had wrongfully taken possession of Kesler's cattle and had interfered with the latter's sale of cattle at the Delta auction; and further, that such conduct of Rogers was wilful and malicious, for which the amount of $10,000 punitive damages should be awarded.
We consider the defendant's contentions in the light of the facts just recited; and as viewed by the trial court in his findings and judgment entered thereon. We see no reason to be concerned with the statute of frauds here. We are dealing with written conveyances signed by the parties to be charged thereby. Concerning defendant's contention that he had a right to place inviolable reliance upon the written instruments and that they were not subject to be varied or contradicted because of the parol evidence rule, this is to be said: that rule has long been recognized as sound and as having a salutary purpose in proper circumstances. But, like all other rules, its purpose is to serve the cause of justice and not to defeat it. Therefore, there have come into being numerous exceptions in situations where the rigid adherence to the rule would have that effect. 5 One of the notable ones, which has application here, is that as between the immediate parties, where the terms of the written instrument are mistaken in that they do not show what the true intent and agreement between the parties was, it may be reformed to show that intent. In more specific application here, when the conveyance (or a part of it) was made only for the purpose of security rather than as an outright conveyance, that fact may be shown. 6
Upon our survey of the record we see nothing therein which leads us to disagree with the view taken by the trial judge: that the evidence was so substantial and persuasive that it could hardly be open to doubt that the recitals above made represented the facts as to the agreement between Kesler and Kershaw; and similarly that defendant Rogers had notice of such facts, which he received from several sources: Kershaw, Kesler and from Kershaw's attorney Mr. Carvel Mattson. In accordance with what we have just said, we are not persuaded that this court should overturn the findings on the evidence adopted by the trial court.
Defendants' contention of error in the instructions to the jury centers upon the failure of the court to tell the jury...
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