Ternes v. Dunn

7 Utah 497 | Utah | 1891

Andeeson, J.:

The plaintiffs and the defendant Chamberlin were partners as real estate agents at Ogden City, Utah, under the firm name of Ternes, Chamberlin & Bowen. The partnership having been dissolved and settled, and Chamberlin, haying refused to become one of the plaint, iffs, was made a defendant in this action. The complaint, which was verified, alleges that the firm made a contract with the defendant Dunn, whereby Dunn agreed to sell to the firm certain real estate adjacent to the city of Ogden for the sum of $7,500. That the firm was to plat and lay out the ground into lots, and pay the expense thereof, and sell the same as soon as it could be done, and turn over to Dunn the cash and mortgages received in payment therefor, and Dunn was to execute deeds to the purchasers of lots as fast as the same might be sold; and as soon as the sum of $7,500 should be paid Dunn, out of the proceeds of the sale of lots, he was to convey any parts of said land remaining unsold to the firm. That thereafter plaintiffs offered to have the land platted and laid out into lots and to sell and dispose of them in accordance with said agreement, but that the defendant Dunn refused to let them do so, and refused to carry out his part of the agreement in any respect, to the plaintiffs5 damage in the sum of $7,000, for which amount they demand judgment. The defendants filed their verified answer, denying each and every allegation of the complaint except the making of the agreement sued on; and also alleged that the same was without consideration, and was obtained by fraud; and that after its execution, and before any breach of its terms, it was, by mutual agreement of the defendant Dunn and the said firm, abandoned and rescinded. At the close of the evidence for plaintiffs the court discharged the jury and entered a judgment of non-suit against plaintiffs, and plaintiffs appeal.

Appellants assign as error that the court erred in refusing plaintiffs5 motion for judgment on the pleadings. It is sufficient to say that no such motion appears by the record to have been made, but if we assume, as counsel seem to concede, that such a motion was made and overruled, we think there was no error in so doing, for, while the answer may he defective in some particulars, the allegations that the agreement was without consideration, and was obtained by fraudulent representations, and that it had been rescinded by the mutual consent of all the parties to it, constitutes a good defense.

It is insisted that the court erred in granting defendants5 motion for a nonsuit against the plaintiffs. By subdivision 5, § 3343, % Comp. Laws 1888, it is provided that a judgment of nonsuit may be entered by the court upon motion of the defendant, when upon trial the plaintiff fails to prove a sufficient case for the jury. The only evidence in the record is the contract sued on, and proof of its execution by the defendants. Ho evidende of any damage was introduced or offered by the plaintiffs.

By the contract, the plaintiffs did not become purchasers of the land described in the contract, but merely the agents of the defendant Dunn for the sale of the land. It is true, the contract provides that “the party of the first part hereby agrees to sell to the party of the second part,” etc., but it does not provide that the plaintiffs are to pay defendant Dunn anything, except to turn over to him the proceeds of all sales made by them to third parties, until the sum of $7,500 should be paid. They do not agree to pay anything themselves absolutely for the property, nor was it to become theirs, but the title was to remain in Dunn, and he was to convey to persons who purchased from or through the plaintiffs, and receive the proceeds until he had received $7,500, and then he was to convey any of the land or lots remaining unsold, if there should be any, to plaintiffs. Ho time is fixed within which the land should be sold, nor the length of time payments might be deferred, nor any price at which the lots should be sold.

The complaint does not allege that the plaintiffs have paid out any money or performed any labor on account of the contract, nor that they had had any opportunities to sell any of the lots; nor does it allege that they could have realized, $7,500 by the sale of less than the whole of the land, and if they could not they were not damaged; nor is it alleged the land could have been sold for, or was worth, more than was to be paid for it; nor is it even alleged that they could have sold the premises, or any part thereof, at any price; so that, although the complaint avers plaintiffs have been damaged $7,000, it does not state in what manner they are damaged; nor any facts showing more than nominal damages. What, then, was there for the jury to determine? The most that plaintiffs could have recovered, if anything, under the .allegations of the complaint, would have been merely nominal damages; but where no greater error, if, indeed, it was error at all, is committed by the trial court the ends of justice do not require that the litigation should be continued, and that the cause be retried, for in fact substantial justice has been done.

It is also insisted that the court erred in compelling the plaintiffs to introduce the contract in evidence. We are unable to understand how plaintiffs, when suing on a contract, should deem it error to compel them to introduce the contract in evidence. How they could expect to recover damages for the breach of the terms of a contract without introducing the contract in evidence we do not understand. We find no error in the record which would justify a reversal of the case, and the judgment of the district court is affirmed.

JZane, C. J., and Blaoeburn, J., concurred.