United American Life Insurance Co. v. Zions First National Bank , 1982 Utah LEXIS 893 ( 1982 )

HOWE, Justice

(concurring):

I concur in affirming the lower court’s findings and conclusions that there was not an accord and satisfaction here. I also agree that there should be no estoppel invoked because the plaintiff made its loan to Johnson and took back and recorded its trust deed before the $50,000 check was delivered to the Bank. Also, the Title Insurance Agency wrote and issued its policy insuring the plaintiff’s trust deed as a first lien before the $50,000 check was delivered to the Bank. In view of those facts, neither the plaintiff nor the Title Insurance Agency could have relied on the conduct of the Bank in accepting and cashing the check. However, I do not think it is fatal to the defense of estoppel that Title Insurance Agency is not a party to this action and that the Bank did not make any representation to either Title Insurance Agency or plaintiff. Further, I believe it makes no difference that the $50,000 received by the Bank belonged to the Johnsons and not to either the plaintiff or Title Insurance Agency-

Had the plaintiff or Title Insurance Agency relied upon the acceptance of the check by the Bank in the making of the loan or in the writing of the title policy, the existence of these other facts which the majority opinion mentions and apparently relies upon, should not prevent an estoppel from being imposed on the Bank.

STEWART and OAKS, JJ., do not participate herein; RIGTRUP, District Judge, and CROCKETT, Retired Justice, sat. MAUGHAN, J., heard the arguments, but died before the opinion was filed.