requiring a "higher degree of proof to sustain a finding of fact which must be established by `clear and convincing' evidence" than where a mere preponderance is sufficient
How later courts described this case
- requiring a "higher degree of proof to sustain a finding of fact which must be established by `clear and convincing' evidence" than where a mere preponderance is sufficient
Written by the judges who cited it.
The opinion
HENRIOD, Justice
(concurring and dissenting).
I concur only with the main opinion’s conclusion as to the ring, the subject of the counterclaim.
The opinion correctly states that the plaintiff was required to prove a gift by clear and convincing evidence, concluding that the evidence satisfied such superior quality of proof, such conclusion apparently being predicated on the fact that the jury found in favor of plaintiff as to such gift. 1 From the facts set out in the main opinion it does not appear to me that the evidence of gift was clear and convincing, and I do not believe that simply because a jury finds in favor of such gift, that the evidence necessarily must be held to have been clear and convincing. Verdicts more than once have been upset where clear and convincing evidence was required, on the ground that reasonable men could not so find.
The main opinion sustains the jury’s finding that there was a gift of the jewelry. It then goes on to say that the transfer of this jewelry satisfied a promise on the part of the decedent to pay the plaintiff for her services. If, as the main opinion finds, there was a gift of the jewelry, it could not possibly satisfy a promise to pay, since there is nothing in the law that says a contract or an obligation under a contract is destroyed in toto or pro tanto depending on the *87 making of a gift and/or its value. The law has never permitted a gift to be used as a set-off against a contractual obligation, •and it is therefore an inconsistency for the main opinion to hold that there was a gift of the jewelry but that the express contract was satisfied by the transfer (gift) of the jewelry.
It appears that the transaction involving an exchange of the jewelry is used by the main opinion 1) to establish a gift and also 2) to establish payment under a contract,— results which are quite discordant with the legal conceptions relating to gifts and contracts.
I am not in agreement with the main opinion, either, when it implies that had the express contract not been satisfied, recovery in’this case could have been had under a theory of implied contract. The pleading in this case reasonably cannot support such a recovery. It is averred that "plaintiff rendered services to said deceased at said deceased’s special instance and request, of the reasonable value of $3,300. That said deceased agreed to pay to plaintiff the sum of ‡3,300 for said services." It is difficult to see how counsel for a defendant could construe the wording of the complaint here as requiring him to prepare for and meet proof •of an implied contract, where the whole pleading points rather clearly to a claim based on an express promise, incidentally and almost parenthetically mentioning that the amount expressly promised was a reasonable amount. Our rules do not allow for a recovery on an implied contract where an express contract is alleged, without a request for amendment of the pleadings, and an opportunity for an opponent to meet the new theory, just as the rules do not permit a recovery for an assault and battery where an express contract is alleged. To allow recovery on an implied contract or on a claim based on an assault and battery, where an express contract is pleaded, simply is to allow a pleader to caption a complaint and aver a right of recovery on a claim which he hopes to prove whether it develops that it is based on an express contract, an implied contract, a tort, an invasion of one’s privacy, equitable relief, or otherwise. I cannot believe the rules contemplate such a result. To recognize an implied contract here, where an unproved express contract was pleaded, and no request for amendment had been made, and no amendment allowed to conform to the proof, without giving defendant an opportunity to meet a different theory, would seem to ignore a recent case decided by this court, 2 where it was held error to give judgment on an implied contract where an express contract was pleaded and no request for amendment had been made and no amendment allowed to conform to the proof. We said that the rules do not require one to meet a theory not pleaded either initially or by requested amendment, without affording an opponent time and an opportunity to meet the new theory.
. ‘‘We are not prepared to say that it was unreasonable for the jury to find that the plaintiff met the degree of proof required, to establish the essential elements of a gift.” (Quote from main opinion.)
. Taylor v. E. M. Royle Corp., 1 Utah 2d 175 , 264 P.2d 279 .