(dissenting).
I respectfully dissent. The main opinion produces an unusual paradox. The suit was filed on the theory that defendants *76, Cardall and Ellison were jointly liable for .rental of a car for 24 months. There was ,no writing to- that effect, so that the alleged contract obviously was vulnerable to the statute of frauds.1 Nonetheless, a judgment was taken against Cardall based on '•the alleged contract, which judgment persists on that theory. Ellison was relieved of a judgment taken against him, and he Set up the státute of frauds as a defense. 'He was successful in his assertion. There-•h'fter, Bennett amended its complaint as against Ellison, departing from its original position and claiming, as against Ellison, a right to recover under á quantum meruit theory. So we have the novel situation "where Bennett has a'judgment against Cardall for $1,548.01 for breach'of an express 'contract, and one against Ellison for $1,-144.52 for breach of an implied contract. Bennett is now in a position to collect $1,-548.01 from Cardall and also $1,144.52 from Ellison, born of identical facts. Each judg-¿íént is a lien against the respective properties of each of the defendants, and it would be heartless to suggest that two attorneys would pass title to both properties, ‘if Cardall and Ellison attempted to sell their homes, based on some kind of calculated differential between $1,548.01 and $1,144.52. It is my opinion that if Cardall sold his home first, paying off the judgment lien against him, Ellison would have a rough time convincing anyone, including lawyers and title companies, that his home was free of encumbrances. This case does not represent a judgment against joint defendants for an identical amount, the payment of which would wipe out the judg.ment debt. It represents a situation where two wholly independent judgments are placed on the books, neither one of which can erase the other. This court talks of equity, unjust enrichment, quantum meruit, etc. but seems to overlook the Torrens system and procedural equities where the plaintiff sues two people jointly, taking individual judgments against one on one theory, and against the other on an entirely different theory.
The main opinion makes much about the trial court’s framing of issues in the pretrial order when it says, “Was the contract made with * * * Ellison or * * * Cardall?” Up to date this question neither verbally nor in written admission has been answered. The evidence reflected in the record is that it was made by Cardall, against whom judgment was taken. Why the trial court thought it was important to determine which of the two made the contract when the court declared it void is not understandable by this writer. The very next issue required in the pretrial order was, “What would be the reasonable value of the rental of the automobile?”' — a question quite inconsistent with any determination as to who made the contract. It seems *77to me that the question should have been, “Who was bound under an implied contract?” which seems to call for the answer, “No one,” since plaintiff already had taken judgment against one of two alleged joint copromisors under an express joint contract obligation and theory.
The main opinion seems to reflect that there was significance in the trial court’s statement about the case coming on regularly for trial, and “having heard the testimony,” 2 made findings: 1) that Ellison contracted to lease a car from Bennett, and 2) that Ellison used it for 22 months, Bennett being 3) entitled to the value of its úse, and 4) that $604.24 had been paid. The first finding was immaterial completely, since the court had decreed that there was no contract, but quite significantly that finding appeared to be of import to someone, since it seems to have lent some kind of comfort or sanction without support in the evidence to the effect that the $79.49 monthly payment under an unenforceable contract happened to be exactly the market value of the use to which the car was put. To this writer this conclusion completely ignores the profit factor that Bennett must have had in mind in letting his rental unit out for use by others. This of itself reveals the fallacy of this whole case. No such conclusion is justified by the almost casual observation that appellant should have brought a record of the evidence with respect to value of use to this Court. He did bring the record to this Court. The evidence obviously was that produced by the discovery process, including answers to interrogatories. The main opinion overlooks the fundamental principle that the plaintiff is the one upon whom the burden is placed to prove the market value in a quantum meruit case, — and there is not a syllable of evidence produced by plaintiff except an allegation in a pleading that was abandoned, based on a void contract, to support any such conclusion. It would be unthinkable, even to a layman, to assert that under a drive-it-yourself car rental contract that is void, the rental stated therein, being itself void, could be used as any evidence of market value or benefit conferred. The market value could be 50% below an agreed rental value in a particular case, especially where the contract, as here, was void, and for the main opinion to suggest that a defendant must bring evidence to discount an unproven judgment as to value, when the plaintiff has not sustained his burden of proving such value, is a novel departure from fundamental principles of pleading and proof. No evidence having been offered by plaintiff as to value or benefit to defendant, his complaint should have been dismissed, — irrespective of statute of frauds problems.
*78The main opinion seems to imply that .because the court found that there were .periodic payments totalling $604.24, defendant-must have paid it, thus -implying that such part performance took the contract out of the -statute of frauds. If that be the implication, the-judgment should have been .based on the contract, — not on a- quantum pieruit basis. The fallacy is twofold: 1) there is a complete absence of evidence that- Ellison made any payments. The presumption is that if anyone paid anything, it was defendant Cardall, against whom a- judgment was taken under an express agreement, with credit having been given to him for the payment; furthermore, if that be the implication, it cannot be sustained under the authorities, which generally hold that where personalty and not land is. involved, part performance does not cut under the • statute of frauds,3 and since the void contract is in no way involved here, part performance is no factor or issue.
. Title 25-5-4, Utah Code Annotated 1953.
. Which obviously was meant to be answers to interrogatories, etc., since there is no notation in the record that anyone at the so-called trial was sworn.
. 6 A.L.R.2d 1053, at 1067; A.L.R.2d Supplement, 1962, at 169.