146 N.W. 692 | S.D. | 1914
Appellant, by his pleadings, claimed to have purchased the note in question at execution sale, while respondent based his right of recovery upon an alleged sale and delivery to him of the note by the owner thereof, long prior to the time that appellant claimed to have acquired his interest therein. The facts relative to respondent’s right to recover on the note, are as follows: He was a practicing attorney-at-law, and was conducting certain litigation then pending, for Chas. H,. and Lucy A. AVade, the latter of whom was the payee named in the note. But the AVades were without funds with which to pay attorney’s fees, costs, and other expenses incident to such litigation; and, in order to compensate respondent for his services and expenses to be incurred, the AVades, during the month of March, 1911, gave to respondent the note in question to be held by him as security for the value of his services and such expenses as might be necessary to carry on said litigation, but with the understanding that, if the value of such services, together with the expenses necessarily incurred, did not equal the proceeds of the note, then he was to pay over to Lucy A. AVade whatever excess there might be. Respondent fully performed the services for which he was employed, but the amount due him had not been determined up to the time of the trial. Evidence was introduced by both parties for the purpose of showing the amount due respondent from the AVades; and, under the issues made by the pleadings, the amount to which he was entitled was a question to be determined, under, proper instructions, by the jury. But, instead of submitting this question to the jury, the court, over appellant’s objections, instructed the jury to return the following verdict: “AVe, the jury, duly sworn and impaneled in this action, do hereby find as follows: AVe find that O. S. Hagen is the legal owner of the note in controversy and is entitled to recover in this action the amount of his proper charges for legal services and advances in the several actions between James R. Piper and Charles H. AVade and Lucy A. AVade, and that the balance of the proceeds of, said note, after deducting for such services and advances, is subject to the. rights of James R. Piper and Lucy A. AVade and Charles. H. AVade.” Upon an order to show cause, issued sometime after the return of said
The record of the trial, up to the time of giving said instructions to the jury, would indicate that all parties tried the case upon the theory that there was no issue raised as to the title of said note in any third party, and that the only question for determination was whether or not respondent had any right, title or interest therein, and, if so, the amount thereof. That the court considered this the only issue in this case is indicated by the provisions of the two orders of interpleader hereinbefore referred to, wherein the court seems to assume that it is only a question as to which one of these parties is entitled to the proceeds of this note. That this was the theory of respondent is shown from the pleadings herein. Appellant, in the action wherein he was plaintiff, had alleged the purchase of the said note upon an execution sale,on a judgment against the Wades. The answer of respondent did not deny the sale of the note to appellant, but alleged that such sale did not pass title to appellant, and that appellant was not the owner and holder of said note. This allegation in the complaint and the answer thereto must be construed as an admission of the sale of said note and an allegation that title did not pass to Piper, owing to the fact thát title to said note had already passed through Hagen. This position is strengthened by the following- statement found in respondent’s brief, wherein he is referring to his answer to that part of the complaint where appellant claimed ownership of the note in question by reason of the purchase at execution sale. Counsel say: “To which complaint respondent answered alleging that at the time of said sale and for a long time prior thereto he was' the lawful assignee, owner and holder of said note, the same having been assigned to him before maturity for value, and that he was ever since and is now the owner thereof and rightfully entitled to its possession, and denies the ownership of said Piper.” This
As against respondent’s claim to the note, appellant contends that the respondent was not a holder of the note “in good faith, for value,” and this because: First, appellant, sometime, before the transfer of the note to respondent, had attached the note in a suit against, the Wades; and, second, that the note was not properly endorsed by the payee when it was turned over to respondent.
The court was not warranted, by anything to be found in the very 'voluminous pleadings, in inserting in the. orders of inter-pleader the portions of those orders above quoted. But, in the face of such provisions and with the pleadings in the condition in which they were, it was prejudicial error for the court, without any warning, to completely change the theory of the case and direct the verdict that it did. The verdict correctly states the law applicable to the case, but the facts should have been submitted to the jury.
As the other errors urged by appellant are not likely to occur again it is not necessary to consider them in detail.
The judgment and order appealed from are reversed and a new trial ordered.