143 N.W. 269 | S.D. | 1913
Lead Opinion
On and for some time prior to the 1st day of February, 1911, defendants, as real estate dealers in the city of
Within two or three days after the execution of the contracts, plaintiff received information from the prospective purchaser to the effect that he would not be able to carry out the contract to purchase, and negotiations came to an end. Plaintiff informed defendants of this fact on or prior to the xoth of March, 1911, and asked them to return the $1,000 he had given them, and to cancel the contracts. Shortly thereafter one of the defendants told plaintiff that he had succeeded in getting back $600, but was unable to get back any more. He thereupon produced the $750 check that had been given him by the plaintiff, but which had never been cashed, and asked plaintiff for the difference between that and $600, amounting to $150. Plaintiff gave defendant a check for $150, returned the two contracts, and defendant returned to him the $750 check. It afterwards developed that neither of,the
Plaintiff’s complaint, in form, sets up two causes of action — one alleging a contract of agency between plaintiff and defendants, and that he had advanced them, as such agents, the sum of $1,000 to be by them applied on the purchase price of -the land in question, but that they had used no part of it for that purpose, and had returned to him but $600 of said money, leaving a balance due of $400. The other cause of action was based upon tort, alleging that defendants -had obtained from plaintiff the sum of $1,000, upon the express representation that it was necessary to use the same as an advance payment in order to secure the contracts to purchase the said land; that said representations, though wholly false, were believed and acted upon by plaintiff; that no part of the said $1,000 was used for the purpose for which it was advanced to defendants; that upon demand for a return thereof they had returned $600, but refused to return the remaining $400.
■ Defendants answered the complaint, without questioning the manner in which it was framed, and went to trial upon the issues ■thus joined. The plaintiff recovered a verdict and judgment for $300; but upon motion by the defendants the judgment and verdict were set aside, and a new trial awarded. From the order granting a new trial, plaintiff appeals.
The question of requiring a party at the beginning of a trial to elect upon which of two or more causes of action he intends to rely has frequently been before this and other courts. Davis v. Tubbs, 7 S. D. 488, 64 N. W. 534; Austin, Tomlinson & Web. M. Co. v. Heiser et al., 6 S. D. 429, 61 N. W. 445; Norbeck & Nicholson Co. v. Pease, 21 S. D. 368, 112 N. W. 1136. Therc-seems to be a general rule requiring a party at the beginning c the trial to so elect; but it is by no means an absolute ór inflexible rule, but one that must yield to the demands of justice and equity. Pom. Rem. & Rem. Rights, § 576. We believe the rule was correctly stated by this court in Norbeck & Nicholson Co. v. Pease, supra, as follows: “Whenever there is a wrong to be righted in a court of justice, and the complainant is unable to determine in advance whether the testimony that the court may admit at the trial will establish the defendant’s liability for the breach of an express contract, or whether the violation of an implied agreement to pay the amount demanded as reasonable compensation will be the basis of the obligation, it would defeat the chief purpose of the reform system to compel an election between statements or counts that are likely to be established and justify the relief demanded. Therefore, when the exact nature of plaintiff’s legal right or the defendant’s liablity under a certain state of facts is doubtful, it appears to be common practice to state a cause of action in more than one form, and, unless the different allegations are so inconsistent that proof of one will disprove the other, the pleader ought not to be required to elect in advance of the trial” — citing Wilson v. Smith, 61 Cal. 209; St. Louis Gas Light Co. v. City of St. Louis, 86 Mo. 495; Blank v. Hartshorn, 37 Hun, 101; Burton v. Rosemary Mfg. Co., 132 N. C. 17, 43 S. E. 480; Maguire v. St. Louis Transit Co., 103 Mo. App. 459, 78 S. W. 838; Spotswood v. Morris, 10 Idaho, 129, 77 Pac. 216; Leonard v. Roberts, 20 Colo.
In the case at bar it is plain that the plaintiff was in doubt as to whether his remedy was based upon a contract of agency or upon the wrongful and tortious acts of the defendants, and therefore there was no error in the denial of defendants’ application to require the plaintiff to elect; but in this case it is clear that defendants were in no wise prejudiced by the ruling of the court, even though it had been erroneous, for the plaintiff offered no evidence except what tended -to establish the liability for the tort.
It is strenuously urged by appellant that the evidence is insufficient to support the verdict. We have carefully examined the portion of the record to which our attention is directed by this assignment. It does not apear whether or not the verdic-t was set aside because of the insufficiency of the evidence; but, as a new trial was awarded, and as there may be other or additional evidence adduced on a retrial of the case, we have refrained from expressing any opinion as to the weight or sufficiency of the evidence.
There is nothing in this record suggesting any such abuse of this discretion, and the order awarding a new trial is affirmed.
Concurrence Opinion
(concurring). I concur in the result reached in the foregoing opinion, as I fully agree that an order granting a new trial will seldom be reversed; and then only when there appears a clear abuse of the discretion that is by law vested in the trial court. I see no reason for discussing at this time the correctness of the trial court’s rulings made during the course of the trial, inasmuch as it is not upon any error in such rulings that my colleague’s conclusion is based. Appellant pleaded two causes of action; his own testimony wholly failed to sustain either. Moreover, under the undisputed facts he was entitled to recover $400, if anything. The verdict was for $300. There was no. abuse of discretion in the granting of a new trial. A refusal to* grant same would have been error.