136 Ind. 368 | Ind. | 1894
Appellee Robert H. Taylor filed a complaint in the Sullivan Circuit Court, against the appellant, Marion Balue, and co-appellee John C. Chaney, in which he alleged, in substance, the following facts:
That on and prior to the 9th day of January, 1886,. he was the owner of a farm in Clark county, Illinois, of the value of $7,000; that at said date said Balue, conspiring to cheat and defraud him out of his farm, and knowing that plaintiff was desirous of selling said land for the purpose of removing to the State of Kansas, proposed to exchange a tract of land in the last named State, for said farm, the Kansas land to be taken and received at the price of $5,000, the defendant, Balue, agreeing to
Plaintiff says, that said contract was reduced to writing and signed by the plaintiff and defendant Balue, and was left with the latter for the signature of the defendant Chaney, and was delivered to defendants, and is now in their possession, wherefore he says he can not furnish a copy thereof; that no part of said $3,000 has been paid; that said fifteen acres of land has never been conveyed to him; that he has been put to a great expense, loss and damage by reason of the fraudulent acts of the defendants, to wit, $5,000; that said sum of $3,000 is long past due, and he is entitled to interest thereon from
To this complaint the defendant Balue demurred for want of sufficient facts and for misjoinder of causes of action. The demurrer was overruled, to which he excepted. Pié then filed his answer in general denial.
The record is silent as to the defendant Chaney, in the making up of the issues. He does not seem to have-either demurred or answered the complaint.
The issues joined between the plaintiff and Balue was-submitted to a jury for trial, and resulted in a verdict for the plaintiff in the sum of $5,523.
The defendant Balue filed a motion for a venire de novo, which was overruled, and he excepted. He then filed his motion and written reasons for a new trial. This motion was overruled, to which he excepted. Thereupon the court rendered judgment upon the verdict, and from it he presents this appeal.
The errors assigned are:
1. The court erred in overruling the separate demurrer of Marion Balue to the complaint.
2. The court erred in withdrawing from the jury the written interrogatory submitted to the jury by the court, upon the request of the defendant.
3. The court erred in withdrawing from the jury, after the same had been submitted to the jury by the court, upon the request of the defendant Marion Balue, the following written interrogatory: “Did the plaintiff Robert PI. Taylor sell and convey to the defendant Balue his, plaintiff’s, farm, situate in Pawnee county, Kansas?"
4. The court erred in overruling the motion of the appellant Marion Balue for a venire de novo.
Under the first specification of error the learned counsel for appellant present an able and ingenious argument, assailing the sufficiency of the complaint upon the ground that a large portion of it is an attempt to charge appellant with a tort in fraudulently misrepresenting his title to the Kansas farm, also in concealing from the appellee the existence of the mortgage lien thereon, and in refusing to rescind the contract of exchange and reconvey his Illinois farm, while the residue, he insists, proceeds upon the theory of a conspiracy between the appellant and his co-defendant Chaney.
After having thus analyzed and summarized the complaint, counsel call our attention to the#well settled rule of law, that a complaint must proceed upon a definite theory, and the cause tried upon the theory presented by the pleadings; and such a judgment as the theory adopted warrants must be rendered, and no other or different one. Feder v. Field, 117 Ind. 386, and citations; First Nat’l Bank, etc., v. Root, 107 Ind. 224.
It is equally true that the theory of a pleading as to whether it is an action on contract or tort is to be determined from the whole pleading, and not from isolated or detached parts. First Nat’l Bank, etc., v. Root, supra; City of North Vernon v. Voegler, 103 Ind. 314; Over v. Schiffling, 102 Ind. 191; Louisville, etc., R. W. Co. v. Schmidt, by Next Friend, 106 Ind. 73.
In First Nat’l Bank, etc., v. Root, supra, it is said: ‘ ‘This court has often decided that every pleading must proceed upon some single definite theory which must be determined by its general scope and character.” Western Union Tel. Co. v. Reed, 96 Ind. 195; Mescall v. Tully, 91 Ind. 96.
It is the law, as contended by counsel, that where a
If a party, upon the discovery of fraud in the procuring of a contract, fails to return, or offer to return, whatever of property or thing of value he has received under the contract, he thereby affirms the contract, and can not afterwards be heard to complain. Shaw v. Barnhart, 17 Ind. 183; Gatling v. Newell, 9 Ind. 572.
Counsel also remind us that representations upon which an action of fraud can be predicated, must be of alleged existing facts and not upon a promise to do something in the future, although the party promising had no intention of fulfilling the promise at the time it was made. Bennett v. McIntire, 121 Ind. 231; Caylor v. Roe, 99 Ind. 1; Fry v. Day, 97 Ind. 348.
The foregoing principles enunciated by counsel are elementary.
Applying these tests to the complaint under consideration, it is manifest it would not be sufficient to constitute a cause of action for a rescission of the contract between the parties. But we think counsel are mistaken in assuming that the complaint in question proceeds upon the hypothesis of rescission.
It is not a model of good pleading; consists of much redundant matter, some of which, including an exhibit of the deeds, we have omitted from a summary of its contents. The portion of the complaint charging the appellant with a tort in fraudulently misrepresenting his title to the Kansas farm, and in concealing from Taylor the existence of the mortgage lien thereon, and in refusing to rescind the contract of exchange and reconvey to
Such facts assert a cause of action for the value of the Kansas land as agreed upon between the parties at the
To secure a person’s rights he is not required to do an impossible thing. The appellee Taylor was then possessed of either of two remedies, namely, to place Balue in statu quo and Rescind the contract or sue for damages. To avoid litigation and end the controversy the appellant and appellee Chaney agreed to pay him $3,000 in cash, and execute to him a deed for fifteen acres of land estimated at $1,500, for which Taylor was to reconvey the Kansas land. This was a mutual stipulation between the parties.
Appellee Taylor peformed his part of the agreement by executing and delivering the deed to Buff for them. They received it from his custody, and conveyed the land to others, and are estopped to avoid it or say that no title passed because, as grantees, they obtained the possession of it before the condition has been performed. A party will not be allowed to repudiate a contract and retain the benefit derived thereunder against equity and .good conscience, but must respond in damages for the breach of his agreement.
In 21 Am. and Eng. Encyc. of Law, page 79, it is said: “A party to a contract may waive his right to rescind, after it has accrued, by instituting an action to recover damages for the breach of the other.”
Owing to the sale, and transfer of the Illinois farm, prior to the commencement of this action, the court could not possibly remit the parties to their original rights in
We can not concur in the view of counsel that the verdict is excessive. It was for $5,523. The Illinois farm was worth $7,000; the appellee Taylor actually received in cash, $1,484, leaving a balance due him of $5,516, without computing any interest.
The exchange was made on the 9th day of January, 1886. The verdict was returned on April 9th, 1891, five years and three months thereafter. Under the mutual stipulations of the parties in adjustment of this transaction, Taylor was to have received $3,000 in cash and $1,500 in real estate, but the money was never paid and the land was never conveyed to him. Four thousand and five hundred dollars, at six per cent, for the time stated, would aggregate, with the principal, $5,917.50.
Counsel complain of the insufficiency of the verdict, urge that it is neither a general nor a special one, and that the court erred in receiving and accepting it, and in refusing to send the jury back with instructions to frame a different and proper one.
The verdict returned is as follows:
“Taylor v. Balue et al. We, the jury, find for the plaintiff, Robert H. Taylor, against defendant Marion Balue, on account of said Balue failing to comply with his contract from beginning to end, and assess his damage at five thousand, five hundred and twenty-three'dollars, and. we further find in favor of defendant John C.. Chaney, and as to him against Robert H. Taylor.
“E. L. Berry, Foreman.”
This verdict is somewhat informal. The phrase “from beginning to end,” is a little out of style in a verdict, but the court could, and did, understand its meaning. It is a general verdict, and hence did not need to find all the facts.
On the trial below the court, upon motion of appellant, Balue, submitted to the jury to be answered and returned with their general verdict the following interrogatory:
“Did the plaintiff, Robert H. Taylor, sell and convey to the defendant Balue, his, plaintiff’s, farm, situate in Pawnee county, in the State of Kansas?”
We think the interrogatory was not material; was not within the averments of the complaint, or of any of the issues in the cause. The complaint alleges that this tract was deeded to said Chaney at the instance and request of both Balue and Chaney. The evidence is not in the record, and we must presume that the case was tried in the court below on the correct theory.
Appellees’ counsel seem to have abandoned the cause in this court, and have furnished no brief to aid us in this investigation.
It is a matter of regret that such extra labor is imposed upon the court, but a careful inspection of the record discloses no error for which the judgment should be reversed.
The judgment is, in all things, affirmed.