24 S.D. 423 | S.D. | 1909
This is an appeal from an order of the circuit court of Jerauld county, sustaining a demurrer to the answer of defendant, in an action wherein the plaintiff sought to recover a certain- sum as commissions, in a transaction involving an exchange of lands in this state for -other lands in the state of Illinois. Appellant contends that -the answer demurred to sets up facts which show that the cause of action alleged in the complaint has become res judicata, and therefore the plaintiff cannot recover in- this action. We do no-t deem it necessary to set out the pleadings in full, because a brief statement of the facts will serve to make clear the grounds of appellant’s contention. A former trial of this action was had in the circuit, court on issues raised by the pleadings as they then stood. From a verdict and judgment in favor of plaintiff, and an order overruling a motion for a new trial, defendant appealed to this court, where a reversal was had,' and the cause remanded for a new trial.
The opinion of the court is found in 21 S. D. 183, 110 N. W. 774. As appears therefrom, the ground of the reversal was a fatal variance between the allegations of the original complaint and the evidence. In brief the allegation of the complaint was .that the commissions were earned by a sale of the land through plaintiff’s services, while the evidence disclosed an exchange of
An examination of the evidence contained in the abstract on the former appeal shows that the actual contract between the parties related to an exchange of defendant’s land for other lands in Illinois, and that defendant fixed a net price of $14 per acre on his lands, and agreed that for the purposes of the exchange his lands were to be valued at -$x6 per acre, the Illinois lands
In construing ,t'he contract as alleged, in the, original complaint it is there said: “The plaintiff’s by the terms of their contract with the defendant, as alleged in their 'complaint, were to receive $2 per acre if defendant received for his land $16 per acre, or the amount per acre in excess of $14 in case defendant did not receive $16 per acre. It was competent for the defendant to show the value of the Illinois farm, in order that the jury might determine from the evidence whether or not the defendant had in fact received more than $14 per acre for his Dakota lands. If, as a matter of fact, the Illinois farm was not worth $45 per acre, then the defendant did not receive $16 per acre in value for his Dakota lands, and the plaintiffs would not be entitled, in any event, to recover under the terms pf their alleged contract an amount in excess of the actual difference in the value of the Illinois farm and the $14 per acre for defendant’s Dakota lands. In excluding this evidence, therefore, the court was in error.” Under the contract, alleged in the complaint, the court was clearly
In the case of Child v. McClosky, 14 S. D. 181, 84 N. W. 769, there was held to be an adjudication where the rights of the parties had been determined under the evidence submitted on a former trial, and the evidence received upon the trial of a new action, involving the same rights, was substantially the same. 1 fere there has been no adjudication of the rights of the parties under the contract shown by the evidence. Appellant’s counsel in his brief, referring to the contract set out in the amended complaint, says,“This is ,a new contract, and not within the prior pleadings and proof.” It is difficult to see how, under this view of the case, counsel can contend that the former decision of this court can be held to be an adjudication of the rights of the parties. The only effect of the former decision- of this court was to grant a new trial and remand the action for further proceedings according to law. If such amendment of the complaint could have been allowed before the trial, no reason is apparent why the same amendment might not be' permitted by the trial court after a new trial was granted by this court. In the case of Schnepper v. Whiting, 18 S. D. 40, 99 N. W. 85, this court -said: “These objects will, we believe, be best attained by holding -that the re
In the case of Selbie v. Graham, 18 S. D. 376, 100 N. W. 758, this court said: “If the claim or cause of action now interposed by Graham was 'not within the allegations of his complaint in the former suit, and such is the law of that case, it necessarily follows that we 'are not now dealing with the same claim' or cause of action, and that the former judgment operates as an estoppel only as to- such issues as were actually litigated and determined in the former action. * * * Had. this court been dealing with a decision containing the facts established by the evidence — had it been dealing with the merits of the controversy in- place of a mere question of procedure — the result might have been different. In any event, the effect of an affirmance would have been decidedly different. Substance should never be sacrificed to form. When avoidable, the enforcement of substantial rights should not be defeated by mere technicalities or the mistakes of counsel. It now clearly appears that a state of facts exists which entitles Graham to substantial relief, that the same state of facts was shown to exist on the former trial, and that he was denied relief, not for the want of proven facts, but because of insufficient pleading.”
We are not entirely clear whether appellant means to- urge the former decision of this court as res judicata, or is- claiming that because the respondent in his amended complaint pleads a contract differing somewhat in its terms from -that contained in his original ■ complaint,' lie is. estopped ■ by his former pleading. The doctrine of election of remedies, discussed in certain authorities cited in appellant’s brief, has no application to- the facts in this' record, and needs no discussion upon this appeal.