(concurring):
I concur and add the following observation as to Part III of the Court’s opinion. While I agree that UFA did not raise the defense of the statute of frauds in its answer and therefore is deemed to have waived it, a more basic reason for denying UFA that defense is that UFA may not properly assert it. U.C.A., 1953, § 25-5-*8874(2) requires every promise to answer for the debt, default or miscarriage of another to be in writing, subscribed by the party to be charged therewith. The plaintiff did not seek to enforce against UFA an oral promise made by it to pay his debts. It is not claimed that UFA ever made any such promise, either orally or in writing. The statute of frauds might be a defense which JCM and MeGarry could properly raise but it is unavailing to UFA. The lower court found liability on the part of UFA for the plaintiffs debts because they were an item of damage suffered by the plaintiff when UFA and Anderson failed to perform their duty to the plaintiff, their client.
In another claim UFA argues that the earnest money agreement was merged into the warranty deeds later executed by the plaintiff and that since the warranty deeds contained no provision for the assumption of any obligations by the buyer, the provision in the earnest money agreement requiring the buyer to pay the obligations is rendered nugatory. See Rasmussen v. Olsen, Utah, 588 P.2d 50 (1978). While this claim by UFA is separate and apart from the defense of the statute of frauds, the same answer applies. The doctrine of merger of the two instruments might well be a proper defense for JCM and MeGarry. However, it is unavailing to UFA since UFA’s liability arises because of its failure to provide a written agreement signed by JCM at closing in which JCM agreed to assume and pay the plaintiffs obligations. The doctrine of merger is no defense in that instance.