(dissenting).
I am in accord with that part of the main opinion which affirms the trial court’s denial of the defendant’s counterclaim due to the vague and uncertain character of the evidence purporting to show a conveyance of an interest in land to the defendant. But I am compelled to disagree with that portion of the opinion which reverses the lower court and permits the plaintiff to recover on an eleven-year-old contract concerning the removal of soil for the purposes of commercial sale.
There is a dilemma which must be confronted and dealt with here: either (1) the soil was removed under what was in effect an agreement of consignment to the defendant Hopkinson under which it was to be paid for if, when and as it was sold; or, (2) it was sold outright to defendant Hopkinson and he became obliged to pay for it as he took it, or within a reasonable time thereafter. The findings and judgment of the trial court effectively preclude plaintiff from recovery under either alternative. In his signed memorandum decision he stated:
The Court is of the opinion that the testimony clearly shows, as does the practice, [1] that the defendant agreed to pay for the soil as he sold it, and further [2] that the Statute of Limitations would bar any claim the plaintiff might have.
And this is also included in the findings.
*77From the first horn of the dilemma I can see no proper escape. The evidence justifies the trial court’s finding that the defendant had only “agreed to pay for the soil as he sold it.” This is simply a consignment arrangement. It does not pass title to the defendant, nor does any right to payment for the soil accrue to the plaintiff until the sale is made. This agreement of the parties as found by the trial court should he adhered to.
As to the other horn of the dilemma: if by some rationalization it could be concluded that the finding as to the consignment arrangement was in error, and that the defendant had agreed to pay for the soil absolutely and without contingency, the further determination of the trial court that “any claim the plaintiff might have” was barred by the statute of limitations should still prevent the plaintiff from recovering.
In that connection the plaintiff’s own contention, and the only evidence relating thereto, was that the soil was to he stored for the winter of 1958-1959 and was to be sold during that summer. If that view be taken, the purchase price would have been due and payable in the summer, or at the latest by the fall, of 1959, and the commencement of this action in December of 1967 would be long after any possible statute of limitations Section 78-12-1 et seq. "U.C.A.1953, as ruled by the trial court.
In regard to the question of the pleading of the statute of limitations something further should be said. Inasmuch as the trial court adopted the view that the defendant had the soil .on consignment, and was not required to pay the plaintiff until the soil was sold, it was not necessary for the matter of the application of the statute of limitations to be brought into focus. This is true even though the defendant pleaded the statute, and the trial court made what impresses me as a safeguard finding thereon. If the trial court had found or expressed an intention to find, that the defendant owed the plaintiff for the soil, then the question of the statute of limitations could have, and undoubtedly would have, been given more specific attention. Nevertheless, in my judgment, upon the state of this record, under the particular facts of this case, the determination by the trial court that “any claim the plaintiff might have” is barred by the statute of limitations should be sustained.
The purpose of the reform in the adoption in 1951 of what we still call our new Utah Rules of Civil Procedure was to minimize technicalities to make it easier to get at the truth and do justice. The most fundamental of these new rules, which underlies and should condition them all, is the statement of their purpose in Rule No. 1:
They shall be liberally construed to secure the just, speedy, and inexpensive determination of every action.
*78To the same effect and specifically about pleadings is Rule 8(f) :
All pleadings shall be so construed as to do substantial justice.
It is submitted that if the rules are applied in this case in accordance with their proper intent of getting to substantial justice, the defendant’s pleading of the statute of limitations was sufficient; and more important, the determination of that issue by the trial court conformed to the literal mandate of Rule 54(c) (1) which provides:
Every final judgment shall grant the relief to which the -party * * * is entitled, even if the party has not demanded such relief in his pleadings. * *
The trial court here acted in conformity with the rules just quoted. I see nothing in Rule 9(h) which could properly be considered as preventing him from doing so in this case.
What the plaintiff was entitled to was to be informed in clear and understandable language the issue raised and the defense relied upon. See Taylor v. Royle Corp., 1 Utah 2d 175, 264 P.2d 279; Kirkham v. Spencer, 3 Utah 2d 399, 285 P.2d 127. This it had in the answer which set forth expressly as an affirmative defense that the claim “is barred by the statute of limitations.”
It is my opinion that the findings of the trial court should be sustained on both issues: that under the agreement of the parties the defendant owes no money to the plaintiff except as the soil is sold; and that if it should be determined otherwise, the plaintiff’s claim would be barred by the statute of limitations; and further, that these parties, who had such a loose arrangement between themselves, which they had let lie asleep so long, should not be disturbed from their slumbers; and neither of them should have judgment against the other. (All emphasis added.)