Ede v. Ward

• Decision Date: 06 October 1913
• Citation: 143 N.W. 269,32 S.D. 351
• Parties: EDE v. WARD et al. [d]
• Court: South Dakota Supreme Court

143 N.W. 269

32 S.D. 351

EDE v. WARD et al. ^[d]

Supreme Court of South Dakota

October 6, 1913

Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.

Action by Ernest D. Ede against Harry J. Ward and another, partners doing business as Ward & Brawner. From an order granting a new trial on defendants' motion after a verdict for plaintiff, plaintiff appeals. Affirmed.

Ernest D. Ede and Null & Royhl, all of Huron, for appellant.

Gardner & Churchill and B. B. McClaskey, all of Huron, for respondents.

POLLEY J.

On and for some time prior to the 1st day of February, 1911 defendants, as real estate dealers in the city of Huron, were the agents for the owners for the sale of two adjoining quarter sections of land in Beadle county. Plaintiff, a practicing attorney at law, was also to some extent engaged in the real estate business, and on or about the above-named date made inquiry of defendants as to the price and terms upon which the said land could be purchased. Either at the first interview or very soon thereafter, plaintiff informed defendants that he had a client in Nebraska who was a prospective purchaser for the said land, if it could be had on satisfactory terms. Several interviews took place between plaintiff and defendants, which terminated, on the 26th day of said month, in the execution by defendants of separate written contracts for the sale of each said quarter sections of land to plaintiff, or such person as he might name. Defendants represented to plaintiff that the owners of the land each required an advance payment of $500, and would not enter into the contracts until such payment was made. Plaintiff had received no money from his client, but complied with this requirement himself, and paid this $1,000 by giving defendants two checks, one for $250 and one for $750. This money was to apply on the purchase price of the land, and each of the written contracts contained an acknowledgment of the payment of $500 on the purchase price. The price of the land made by defendants to plaintiff was in excess of the price made by, and that was to be received by, the owners of the land, and this excess represented the profit or commission that defendants were to have for negotiating the sale.

Within two or three days after the execution of the contracts, plaintiff received information from the prospective purchaser to the effect that he would not be able to carry out the contract to purchase, and negotiations came to an end. Plaintiff informed defendants of this fact on or prior to the 10th of March, 1911, and asked them to return the $1,000 he had given them, and to cancel the contracts. Shortly thereafter one of the defendants told plaintiff that he had succeeded in getting back $600, but was unable to get back any more. He thereupon produced the $750 check that had been given him by the plaintiff, which had never been cashed, and asked plaintiff for the difference between that and $600, amounting to $150. Plaintiff gave defendant a check for $150, returned the two contracts, and defendant returned to him the $750 check. It afterwards developed that neither of the owners of the land had required or had received any money whatsoever on the transaction; that defendants did give $200 to a representative of the owner of one of the quarters, but that this was returned to them when the contracts were canceled. When plaintiff learned these facts, he demanded of the defendants a return of the $400 retained by them, and, upon their refusal to return the same, brought this action.

Plaintiff's complaint in form set up two causes of action; one alleging a contract of agency between plaintiff and defendants, and that he had advanced them, as such agents, the sum of $1,000 to be by them applied on the purchase price of the land in question, but that they had used no part of it for that purpose, and had returned to him but $600 of said money, leaving a balance due of $400. The other cause of action was based upon tort, alleging that defendants had obtained from plaintiff the sum of $1,000, upon the express representation that it was necessary to use the same as an advance payment in order to secure the contracts to purchase the said land; that said representations, though wholly false, were believed and acted upon by plaintiff; that no part of the said $1,000 was used for the purpose for which it was advanced to defendants; that upon demand for a return thereof they had returned $600, but refused to return the remaining $400.

Defendants answered the complaint, without questioning the manner in which it was framed, and went to trial upon the issues thus joined. The plaintiff recovered a verdict and judgment for $300; but upon motion by the defendants the judgment and verdict were set aside, and a new trial awarded. From the order granting a new trial, plaintiff appeals.

At the beginning of the trial, and before the introduction of any testimony, the defendants moved the court to require the plaintiff to elect upon which of the causes of action set out in his complaint he intended to rely. The motion was denied, but upon being renewed a little later was granted. The plaintiff thereupon asked leave of the court to strike out of his complaint the words "for a second cause of action against the defendants, the plaintiff herein alleges and complains," and insert in lieu thereof the words "and the plaintiff further states to the court," which application was granted. This left the complaint containing all the matter that had been pleaded as two causes of action, but pleaded as one count. The defendants then moved that all that portion of the complaint which had constituted the first cause of action, as originally drawn, be stricken out as redundant, immaterial, and inconsistent with the remaining portion of the complaint, and for the further reason that the complaint stated in one count two separate, distinct causes of action, one ex contractu, and one ex delicto. This motion was denied, and the denial thereof is assigned as error.

The question of requiring a party at the beginning of a trial to elect upon which of two or more causes of action be intends to rely has frequently been before this and other courts. Davis v. Tubbs, 7 S. D. 488, 64 N.W. 534; Austin, Tomlinson & Web. M. Co. v. Heiser et al., 6 S D. 429, 61 N.W. 445; Norbeck & Nicholson Co. v. Pease, 21 S.D. 368, 112 N.W. 1136. There seems to be a general rule requiring a party at the...