Appeal from a no cause of action judgment by the court, without a jury. Affirmed. Costs to defendant.
Plaintiff was a supplier of lumber. Defendant bought some from plaintiff on a sort of running account over about a two-year period. A balance accrued in favor of plaintiff in the sum of about $5,000. On being pressed for payment, defendant, in December, 1963, got together with Mr. Simondson, president of plaintiff, took a look at the latter’s books, struck a balance *91■due and paid plaintiff exactly what plaintiff claimed was due and owing, by signing a promissory note with interest, payable in the future.
There was a question of sales tax pending at the time. Nonetheless the account was marked paid in full when the note was paid. Although plaintiff accepted the defendant’s money in full payment of the account, thereafter the State Tax Commission furnished plaintiff with an audit of his accounts, concluded that plaintiff owed some $800 sales tax which it had not collected for sales to defendant, which plaintiff paid. Thereafter, and only thereafter, the plaintiff filed a complaint against defendant alleging the common count for “goods, wares and merchandise” sold. This was simply a complaint in indebitatus as-sumpsit. Thereafter, the defendant invoked the discovery process under the rules, asked some questions, confronted plaintiff with a photocopy of the note marked paid in full. Thereafter, and only thereafter, the plaintiff, apparently without following the provisions of Rule 15, Utah-Rules of Civil Procedure, since an answer had been filed, amended its complaint, changed its whole theory of assumpsit to one sounding somewhat in equity, a brand new theory, to recover the amount paid on behalf of the defendant, the real debtor to the State, not to the plaintiff. Before and upon payment by plaintiff of the amount requested by the Tax Commission, there is no evidence- in the record of any protest by plaintiff being made to the Tax Commission, and there was no notification by either the Tax Commission or by plaintiff to the defendant as to any hearing on the matter. The amount paid by the plaintiff to the Tax Commission was voluntary and in the light of its amended complaint, was officious, without the knowledge or consent of the defendant, who, so far as the record is concerned, had no opportunity to state his position to either, and had no opportunity to assert any defense he may have had with respect to tax liability. Plaintiff was not a creditor of defendant, although it may have been responsible, as an agent, to collect the tax for the State.
The plaintiff’s whole case, as reflected by the pleadings and proof, was bottomed on a deceit practiced by the defendant in representing that the latter had a certificate of tax exemption from the Tax Commission. Time and again both on direct and cross-examination, plaintiff asserted that on numerous occasions during the two-year sales and purchase account with the defendant, the latter said he had such a tax exemption, but at no time did the plaintiff insist on having any certificate of exemption displayed to it by defendant. Plaintiff conceded, also, that he had collected a tax from defendant on some deliveries, but not on others. Strange and significant it is that at the final settlement, the question of who owed the tax never was raised by *92■plaintiff. Strange and significant it is that the Tax Commission’s' audit showed clearly that the plaintiff had failed to collect the tax from others in the same position as defendant. Also it is strange that even Mr. S'., president of the corporation found himself in the same position as defendant, when he personally bought material from his own company but for some reason did not pay the tax. The explanation here is that it was a clerical error, which, when revealed by the State’s audit, was corrected by payment. The trial court was confronted by numerous other items like the one here involved for all of which the plaintiff paid the tax without contest, after the audit was presented to it.
With the above abstracted evidence before it, the court found that there was á final settlement of accounts between the two litigants, — -or an accord and satisfaction, if you please. We think that no matter what you call it, the defendant is not obligated to pay the tax to the plaintiff. It was the primary obligation of the defendant, if there were any tax liability, to the state, not to the plaintiff, that paid the amount at its own risk, and officiously volunteered to take care of another’s debt without the latter’s consent or knowledge or opportunity to dispute the obligation. There is no law that we know of that will justify the course of conduct of the plaintiff here and then allow it to recover something as a creditor to which it'was not entitled.
The only peg upon which plaintiff can hang its hat is a finding of fact by the trial court that there was an accord as reflected by plaintiff’s books. This is the basis also, upon which the dissenting opinion is bottomed. There is not a smidgeon of evidence in this record indicating that the parties relied on the account “as reflected by plaintiff’s books.” Both the plaintiff and the dissent have taken their theses out of context, since the trial court in conclusions of law distinctly and specifically stated that “The note of December, 11, 1963, was an accord and satisfaction of any amounts defendant might have owed the plaintiff.”
The above is simply set forth to reflect that the trial court did not err, even though the basis for the defense was an accord and satisfaction. We have no compunction about the matter except by way of analysis, of the transaction.
We think that there is an absolute and positive reason to say that the statute itself is dispositive of this case. The statute;. Sec. 59-15-5, Utah Code Annotated 1953, says that:
* * * provided, however, that where any sale of tangible personal property is made by a wholesaler to a retailer, upon the representation by the said re~ *93taller that the said personal property is purchased by the said retailer for resale, and the said personal property thereafter is not resold, the wholesaler shall not be responsible for the collection or payment of the tax imposed on the said sale, but the said retailer shall be solely liable for the said tax. (Emphasis added.)
which is quite consonant with the language of Reg. S2 of the Commission that the sales tax:
is not upon the article sold or furnished, but upon the transaction, and the purchaser is the actual taxpayer.
It is obvious from the legislation that the plaintiff should have resisted the Tax Commission’s claim based on its audit or paid it, and given the Commission the facts claimed by plaintiff, and thus permit the former to listen to the facts and assess the tax where statutorily it belonged, — on the defendant, — who, in turn, should have had an opportunity to do its own explaining as a possible defense to payment. The cold fact is, that plaintiff has sued the .wrong person for a claim as a creditor which it does not have either at common law or under any statute of which we are aware.
We believe and hold that the trial court, on the facts, judiciously pierced the veil of controverted evidence engendered by plaintiff’s evidence, — not very satisfactory or perhaps not believable by the trial court, — ¡ •and a’misconception on the plaintiff’s interpretation of controlling legislation.
CALLISTER and TUCKETT, JJ., concur. CROCKETT, C. J., concurs in the result.