22 S.D. 417 | S.D. | 1908
This action was commenced in equity, and, findings >and judgment being in favor of the plaintiff, the defendants have appealed.
The case was tried to <the court without a jury, and the court among other things finds: “That the full amount of said money and chattels so received by plaintiff from his guardian, to wit, the sum of $13,539.27, was delivered by plaintiff to defendants Thurman Craigo and Kittie M. Craigo at their special instance and request; that the titles to said above-described lands were taken in the name of the defendant Thurman Craigo, the defendant Kittie M. Caigo, or the defendant Ralph T. Craigo; that the plaintiff’s money was used in paying for such lands, and that defendants, and each of them, at all times had full knowledge that said above-described land was purchased, either in whole or in part, with money belonging' to plaintiff; that at no time since said defendants Thurman Craigo and Kittie M. Caigo received said money belonging to plaintiff have said defendants made an accounting of said money, or the property purchased with said money, or the rents or profits obtained from any of said transactions; that defendants have never paid to plaintiff any part of said money received by defendants Thurman Craigo and Kittie M. Craigo, except the sum of $4,286; .that in all things connected with said transactions plaintiff relied upon .the honesty and good faith of said defendants, and. had. confidence-that said-defendants, and each of them, would-deal
The defendants claim a reversal of the judgment of the trial court upon the following grounds: (1) The court failed to decide the issue created by the allegation and proof of settlement and the implied replication -thereto; (2) no trust .relation of any nature was proven to have existed between the parties, though the complaint sets up an equitable cause of action, and prays equitable relief; (3) the court rendered an ordinary judgment at law. for the repayment of money found to. have been converted: (4) the evidence is insufficient to justify the finding’s of fact and conclusions of lav/. In the view we take of the case it will only be necessary to discuss the first and third points made by the counsel, as the second point is included in the third.
No 'reply having been, made to the new matter in defendants’ answer, the allegations therein were legally deemed controverted, and an issue of fact created. In Lyon v. Plankinton Bank, 15 S. D. 400, 89 N. W. 1017, this court held that under our Revised Code of Civil Procedure, § 145, an allegation of new matter in the answer not relating to a counterclaim is to be deemed, controverted by the plaintiff on a direct denial or avoidance, and in that case this court said, “The court having failed to find upon this material issue of- fact after having been requested 'so to do, the judgment cannot be sustained,” and the judgment was therefor reversed. It is contended by the respondent that the'court in its twelfth finding of fact found, in effect, against these defendants upon this issue, but we cannot agree with counsel in this contention. It will be noticed that in the answer there is no allegation that there was any
It is further contended by the'plaintiff that there was no request to make a finding on this issue, but this contention is clearly untenable, as the defendants presented findings of fact in which they asked the court to find, as follows: “That prior to the commencement of this action all matters existing between plaintiff and each and all of tire defendants, and all matters in which plaintiff had, or claimed to have, any interest, claim, or demand whatsoever, were fully and completely paid, settled, and adjusted, and defendants paid plaintiff in full the amount agreed upon pursuant to the terms of said settlement, and plaintiff accepted such full settlement and adjustment in satisfaction of all matters and claims existing between them at that time.” The court was therefore properly requested to malee a finding upon the' issue of settlement and payment tendered by the answer. As we have seen, the settlement and adjustment between the parties is not only subscribed by the parties thereto, but was filed in the office of the clerk of Roberts county and became a record therein. If the plaintiff claimed that this setttlement was obtained from him by fraud, mistake, or undue influence, the burden was upon him to show such fraud, mistake, or undue influence; and, in the absence of a finding that such was the fact, the usual presumption attaches that the settlement was made in good faith, and with a full knowledge of all the facts on the part of the plaintiff, and he, having received the money upon the notes executed under the settlement, was, in the absence of any proof of 'fraud, mistake, or undue influence, concluded by the same, at least (the defendants were entitled to a finding upon that issue which could have been reviewed on appeal by this court. In view of the fact that there is no finding upon this issue, this court is hot authorized to consider the evidence bearing upon the same, and the judgment of the court below must therefore be reversed, and
It is also quite clear that, as the court failed to find any trust relation existing between the defendants and the plaintiff, the court was not authorized to enter .money judgment in favor of the plaintiff against the defendants, as in the absence of such trust relation an action could only be maintained for money had and received, or money converted by the ■ defendants, which would be purely an action at law, in which the defendants would be entitled to a jury trial. In the case of Anderson v. Chilson et al., 8 S. D. 64, 65 N. W. 435, the complaint stated a cause of action clearly equitable in character, and prayed for an accounting, but, the court having entered judgment for damages, the decision of the court below was reversed, on the ground that the distinction between equitable and legal actions ■ still exists, and that no recovery could be had upon a cause of action after it had been satisfactorily proven that 110 ground for equitable relief existed, and this court in its opinion says: “When a complaint is framed for equitable relief, and it appears upon the trial that the pleader is not entitled thereto, a judgment at law, inconsistent- with the allegations of the complaint, for damages upon a breach of contract to pay a stipulated amount of money, cannot be entered, and the complaint must be dismissed.” And the court quotes with approval the following from Dalton v. Vanderveer, 8 Misc. Rep. 484, 29 N. Y. Supp. 342: “Where a complaint states a cause of action which is within the jurisdiction of equity, and is not an action at law, and the evidence given on; the trial fails to sustain such equitable cause of action, but shows a cause of action at law, the complaint will nevertheless be dismissed, as a distinction between equitable and legal action still exists, though the forms have been abolished.” And Mr. Pomeroy, in his work on Rights and Remedies, in discussing this question, says: “If the complaint or petition contains a case entirely for equitable relief stating no facts upon which a legal remedial right arises, and prays a judgment awarding equitable relief alone, but on the trial the plaintiff fails to prove the case as thus alleged, but does establish a legal cause of action not averred in the pleadings, his suit must be dismissed. He cannot recover the legal
It is quite clear, therefore, in any view of the case that the defendants are entitled to a reversal of the judgment, and the same and order denying a new trial are reversed.