Addy v. Stewart

• Decision Date: 20 June 1949
• Docket Number: 7386
• Citation: Addy v. Stewart, 69 Idaho 357, 207 P.2d 498 (Idaho 1949)
• Parties: ADDY v. STEWART
• Court: Idaho Supreme Court

207 P.2d 498

69 Idaho 357

ADDY v. STEWART

No. 7386

Supreme Court of Idaho

June 20, 1949

Appeal from District Court, Third Judicial District, Ada County Charles F. Koelsch, Judge.

Reversed, and new trial ordered.

E. G Elliott, Boise, for appellant.

An action for money had and received is properly brought to recover money paid in excess of the actual amount required by the terms of the contract, where the excess is procured by fraud. Humbird v. Davis, 210 Pa. 311, 59 A. 1082. So where a person, by fraudulent representations as to cost or value of property received under contract, is induced to part with an excess amount, he may keep the property and maintain an action for money had and received to recover the excess amount. Stanhope v. Swafford, 77 Iowa 594, 42 N.W 450; Holtz v. Schmidt, 59 N.Y. 253; Barnard v. Colwell, 39 Mich. 215; Martin v. Hutton, 90 Neb. 34, 132 N.W. 727, 36 L.R.A.,N.S., 602; Kimball v. Cunningham, 4 Mass. 502, 3 Am.Dec. 230; 24 Amer.Juris. 25.

It is the trial Court's duty to instruct on both parties' theories of a case if there is any evidence to support such theories. Mason v. Hillsdale Highway Dist., 65 Idaho 833, 154 P.2d 490; Idaho Gold Dredging Corp. v. Boise Payette Lbr. Co., 64 Idaho 474, 133 P.2d 1017; Jones v. Mikesh, 60 Idaho 680, 95 P.2d 575.

After the jury have retired for deliberation, it is reversible error for the Court to allow them to return into Court and to give them information or instructions in the absence of the parties or their counsel, unless after notice given to the parties or their counsel. Section 7-213 I.C.A. Redman & Yontz v. Gulnac, 5 Cal. 148; Mahoney v. San Francisco & S. M. Ry. Co., 110 Cal. 471, 42 P. 968; Hrovat v. Cleveland R. Co., 125 Ohio St. 67, 180 N.E. 549, 84 A.L.R. 215.

Thornton D. Wyman, Boise, for respondent.

The contract here involved no promise on the part of defendant to pay money. The failure of consideration being only partial, plaintiff's remedy was either to affirm the contract and sue for damages, or give timely notice of rescission, and enforce the same by proper action. Neither of these would imply an agreement on the part of defendant for the direct payment of money. Doud v. Jackson, 102 Cal.App. 213, 283 P. 107; Powers v. Freeland et al., 114 Cal.App. 146, 299 P. 736.

Where the jury announce their inability to agree on a verdict, it is well within the discretion of the trial court to urge on them earnest effort to agree, and thus prevent unnecessary mistrials. Peterson v. Rawalt et al., 95 Colo. 368, 36 P.2d 465; Hill v. Wabash Ry. Co., 8 Cir., 1 F.2d 626; Sevilla v. People, 65 Colo. 437, 177 P. 135.

Taylor, Justice. Holden, C. J., and Givens, Porter and Keeton, JJ., concur.

OPINION

Taylor, Justice.

In August, 1946, appellant, plaintiff below, purchased from respondent, defendant below, a parcel of real property with improvements including an apartment house thereon for the sum of $ 6,850.00, which was fully paid.

In her complaint, plaintiff alleges; that as a means and for the purpose of inducing her to purchase the property defendant represented to her that there was existing and properly installed upon the property an adequate sewer system for use in connection with and for the sewage disposal of said house; that the representation was false and fraudulent and known to defendant to be false and fraudulent when made; that she believed the representation to be true and purchased the property in reliance thereon; that there was no such or any sewer system on or appurtenant to the property; that the price and reasonable value of a sewer system such as represented was at the time of the sale $ 800.00; that defendant refused to deliver or install such a system and thereby became indebted to the plaintiff in that amount and being so indebted promised to pay to plaintiff $ 800.00 on request; that demand had been made and defendant had not paid. The prayer is for $ 800.00 with interest from the date of the payment of the purchase price of the property.

It will be observed that plaintiff has sought to plead an action in assumpsit, or implied contract. Apparently this was done to enable her to procure a writ of attachment, the defendant being out of the state at the time the action was commenced. Defendant cites authorities to the effect that a plaintiff by waiving the tort and suing upon an implied contract cannot for the purpose of procuring an attachment convert the nature of the action from tort to contract, -- Bullard v. Rosenberg, 130 Cal.App. 542, 20 P.2d 104, and others. Contra, Barth v. Graf, 101 Wis. 27, 76 N.W. 1100. However, respondent did not appeal from the order of the court denying his motion to dissolve the attachment, hence the question of whether or not the complaint in this case would support an attachment under the provisions of I.C. 8-501 is not involved on this appeal.

In his answer the defendant admits the sale of the property and receipt of the purchase price in full, denies the fraud and affirmatively alleges that there were no representations of any character made to plaintiff concerning the sewer system and that plaintiff examined the property and made no inquiry about the sewer disposal system. Defendant also denies any contract or agreement with plaintiff relative to a sewer system. Upon the trial both parties offered evidence on the issue of fraud. Suffice it to say, on this phase of the case there was sufficient competent evidence in the record from which the jury could have found for either party, hence this issue should have been submitted with appropriate instructions. The trial court apparently took the view that the plaintiff must recover upon contract or not at all. The following instructions were given by the court:

"Instruction No. 3

* * * *

"But the plaintiff alleges that the defendant represented that in connection with the apartment house there was at that time an adequate sewer system, consisting of proper pipes, tile septic tank, and cesspool, which representations the plaintiff alleges were untrue, and that there was in fact no sewer system of any kind or character, appurtenant to said property, or installed or available for use therewith; that by reason of that fact the plaintiff and the defendant thereafter agreed that the price or value of such a sewer system was $ 800.00, and that the defendant agreed and promised to pay to the plaintiff said sum of $ 800.00, which he has failed and refused to do. These allegations the defendant denies. He denies that there was any agreement at the time of said sale as to any sewer system in connection with said property; that the plaintiff, prior to her purchase of the property, examined the same and that there was nothing said as to any sewer system, and nothing said that the price or value of the necessary sewer system was $ 800.00, and denies that he agreed or promised to pay the plaintiff $ 800.00, or any other sum, or that he is indebted to the plaintiff in the sum of $ 800.00, or in any sum.

"Instruction No. 4

"The issues, therefore, for you to determine are:

"First, whether the defendant, in connection with the sale of said property to the plaintiff, represented that there was at the time of said sale, an adequate sewer system appurtenant to said property, and fully and completely installed for use in connection therewith, when in fact there was no such sewer system installed or connected with or to said property;

"Second, whether the plaintiff and the defendant agreed that the value or price of such a sewer system, was $ 800.00; and

"Third, whether the defendant agreed and promised to pay to the plaintiff the said sum of $ 800.00.

"Instruction No. 5

"In this connection I instruct you further that this action is an action upon contract, not an action for damages, and unless the preponderance of the evidence shows that at and prior to the sale of said property by the defendant to the plaintiff, the defendant had represented that there was then a sewer system connected with and appurtenant to said property, when in fact there was no sewer system of any kind connected with or appurtenant thereto, by reason of which the defendant promised and agreed to pay to the plaintiff the sum of $ 800.00, -- unless the preponderance of the evidence shows such a promise by the defendant, the plaintiff is not entitled to recover herein, and your verdict must be for the defendant.

"Instruction No. 6

"Stated in another way, this is an action upon an alleged promise by the defendant to pay to the plaintiff the sum of $ 800.00, the consideration for which promise, so the plaintiff alleges, was the fact that the defendant at and prior to the sale of said property to the plaintiff represented to the plaintiff that the sale included a completely installed sewer system appurtenant to and connected with the said property, when in fact there was no such sewer system.

"Instruction No. 7

"Stated in still another way, it is the contention of the plaintiff that the defendant violated the agreement under which he sold the said real property to the plaintiff, in that he represented to the plaintiff that there was an adequate sewer system installed and connected with the said property, when in fact there was none, and that the parties thereupon settled the damages resulting to the plaintiff because of the defendant's said violation, and that they settled the said damages by the promise on the part of the defendant to pay to the plaintiff the sum of $ 800.00 in satisfaction of such damages.

"It is this alleged promise by the defendant that this action is based upon, and I instruct you that unless the preponderance of the evidence shows that the defendant did so promise to pay $ 800.00 to the plaintiff your verdict must be for the defendant...