I dissent. The record indicates that Abbott made demand for the return of the cows as early as December of 1975. For the previous years, Christensen had received one-half of the calf crop which Abbott considered compensation for the care of the cattle. No agistor's lien was ever claimed for the care and feeding of the animals until March 19, 1976. Christensen and Abbott executed the assignment (which on the first appeal of this case was ruled to have been an accord and satisfaction of all claims to that date) on April 28, 1976. Abbott testified as having said to Christensen: "Now I will go ahead and sign this thing if you will simply go ahead and keep our oral agreement and let me have the black cows and tear up that note and no more tricks." Christensen responded "Fine."
In light of that representation I would disagree with the majority that "there is no evidence that Abbott also made a demand on that date for the possession of the cattle." He made demand simultaneously with *Page 124 the execution of the accord and satisfaction and any refusal to deliver the cows to him thereafter was done at Christensen's peril. To allow Christensen to receive compensation in quantum meruit for wrongful withholding of the cattle permits him to profit from a transaction involuntarily suffered by Abbott. The trial court in entering the Memorandum Decision found that numerous demands had been made for the return of the cattle. The record buttresses that finding. Consequently it held that after April 28, 1976, "[u]nder the law of this case defendant was entitled to possession at least from and after that date, and plaintiff's retaining possession thereafter was wrongful." That finding and holding precludes an inconsistent award of reasonable costs incurred. The doctrine of quantum meruit applies principles of equity. "One who commits a wrong must take the consequences and cannot complain that someone else does not rescue him therefrom."Pacific Metals Co. v. Tracy-Collins Bank Trust Co., 21 Utah 2d 400,404, 446 P.2d 303 (1968). See also Jacobson v.Jacobson, Utah, 557 P.2d 156 (1976). I would reverse the award of agistment services.
DURHAM, J., concurs in the dissenting opinion of HOWE, J.