103 N.W. 426 | N.D. | 1905
This action was brought in the district court of Cass county to recover the sum of $1,500 and interest, which sum plaintiff claims was intrusted to the defendants in December, 1901, for the purpose of securing bail for one Blanchard, who was at that time in the custody of the sheriff of Clay county, Minnesota, charged with a public offense, and was to be returned to plaintiff when such bail was exonerated1; that said money was so used by the defendants, but that subsequently defendants caused said Blanchard to be surrendered and the bail exonerated, and received said bail money, or its equivalent, back into their possession, and refused, upon demand, to pay the same to plaintiff, and appropriated the same to their own use. The defendants answered jointly, admitting the receipt of the $1,500, and alleging that they deposited the same in a bank in Moorhead to indemnify against liability certain .persons who became sureties upon a bail bond given for the release of said Blanchard from custody; and they allege that thereafter, and on May 21, 1901, at plaintiff’s request, they caused said Blanchard to be surrendered and the bail exonerated,
We are agreed that this judgment should be reversed and a new trial ordered. Counsel for defendants, as well as the trial court, evidently misconceived the nature of the action, and the scope of the issues tendered by the pleadings, and, starting from the false premise that it is an action in tort for -conversion, -have reached a conclusion which is palpably erroneous. The complaint merely sets forth the facts that plaintiff in-trusted this money to defendants for a specific purpose, upon an agreement that the same •was to be repaid when such purpose was fulfilled, and that thereafter such purpose was fulfilled, and defendants received said money, and “converted -the same to their own use, an-d have refused to pay the same to this plain-tiff, though often demanded so to do.” Does it necessarily follow from the use of such language in a complaint that the plaintiff is -seeking to recover damages as for a conversion? We .think not. We must not lose sight of the fact that under the Code of Civil Procedure the forms of all actions at law and suits in equity are abolished, an-d in this state there is but one form of action for the enforcement or protection of private rights and the redress -o-f private wrongs. The Code provides that the complaint in such action, aside from the title and prayer for judgment, shall contain merely a plain- and -concise statement of the facts constituting a cause of action. Of course, the primary rights of the parties and their corresponding duties remain the same under the code procedure as before, but it is n-o longer possible to determine the nature of the cause of action by the form of the action or the form of the summons, as such forms are entirely abrogated, and we must look alone to the allegations of the complaint; and a
But even if there could be a doubt as to the nature of the cause of action as disclosed by the complaint, still we think that defendants, by their answer, have placed it beyond, their power to contend that the action is one in fort for conversion. By their answer they squarely tender the issue as to their employment by the plaintiff, and the value of their services rendered and expenses incurred, and they seek to offset the -same against plaintiff’s demand; and they even tender judgment to the plaintiff for a sum which they concede to be due her. They thereby, in effect, treat the action as an action based on contract! as such defense would be improper in an action based on tort. The plaintiff was entitled to have this action submitted to the jury upon the issues, not simply framed by her in the complaint, but the issues as tendered by the defendants themselves, because, assuming that the jury found that the plaintiff employed the defendants, it was within their province, under the issues as tendered by the defendants, to. de-. termine whether or not they should keep all this fund for their services and disbursements in behalf of Blanchard. The plaintiff accepted this issue as thus tendered by defendants, and there cer
Even if the parties were all mistaken as to the scope of the issues, and proceeded to trial upon the theory that the cause of action was ex delicto and not ex contractu, still we think they should not operate to deprive them of the right to have the real issues submitted and determined, and such relief granted' as the facts would warrant. The case of Conaughty v. Nichols, 42 N. Y. 83, is analogous on principle. The action was brought against the defendants, who were factors, to recover the proceeds of produce assigned to them for sale by the plaintiff. Plaintiff alleged in his complaint and proved upon the trial, among other facts, that he consigned to the defendants certain produce, to be sold by them, and the net proceeds to be remitted to him; that the defendants received and sold said property; and that after deducting all expenses of sale there was due the plaintiff the sum of $618, which he demanded of the defendants, who omitted and refused to pay the same. The complaint contained the following allegation: “And have converted the same to their own use to the damage of the said plaintiff in the sum of $618, for which said last-mentioned sum said plaintiff demands judgment against the defendants.” De
From what we have here said it necessarily follows that the judgment must be reversed and a new trial ordered, and in view of the fact that nearly all the rulings on which the other assignments of error are based were predicated upon an erroneous theory as to the nature of the issues involved, and upon another trial most of such questions will not arise, we will but briefly notice tyro of the other assignments of error.
The trial court instructed the jury that the burden of proof was upon the plaintiff to establish the conversion alleged. This was technically correct if the action was for conversion, and if the answer amounted simply to a general denial, as was held; but in view of the new matter in the answer, which we think amounted to a confession and avoidance of the facts alleged in the complaint, this instruction was erroneous. By the answer, and especially by ■their proof, defendants, in effect, admitted the receipt of the money for a specific purpose, and sought to justify its retention for another purpose. We think the burden was upon them, instead of plaintiff, to show that they were employed by her to defend Blanchard, as claimed by them. If they were so employed, then the relation between them was at least analogous to that of attorney and client, and they owed her the same duty that they would owe to a client to exercise good faith and honesty in their transactions with her, at least so far as this fund in their hands belonging to her was concerned; and the same rule as to .the burden of proof would govern in an action brought by her to recover such fund, whether such action is based upon contract or in tort. Hence we unhesitatingly hold that the trial court committed reversible error in charging the jury as to the burden of proof.
The defendant George W. Freerks was permitted, in giving his testimony, to use a certain ledger of account belonging to and kept by defendants, for the purpose of refreshing his memory as to the various charges made against the plaintiff for services performed and disbursements incurred. Plaintiff's counsel offered this book in evidence as a part of his cross-examination of this witness, but such offer was objected to, and the objection sustained, and plaintiff assigns this as error. We think such offer should have been received. The witness having used the ledger to refresh his memory regarding the account against plaintiff, it was plaintiff's right
For the foregoing reasons, the judgment appealed .from is reversed, and a new trial ordered.