Gamble v. Loffler
| Decision Date | 14 November 1911 |
| Citation | 133 N.W. 288,28 S.D. 239 |
| Parties | ROBERT J. GAMBLE, Plaintiff and respondent, v. GILBERT D. LOFFLER, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Yankton County, SD
Affirmed in part, reversed in part.
Charles P. Bates
Attorney for appellant.
French & Orvis
Attorneys for respondent.
Opinion filed November 14, 1911
The complaint herein unites three causes of action not separately stated; two of said causes being to recover damages claimed to have been suffered through the fraud and deceit of defendant while defendant was occupying a fiduciary relation toward plaintiff in two certain joint adventures in the purchase of real estate.
The complaint sets forth in brief as follows:
(1) That on several occasions in the fore part of July, 1907, defendant represented to plaintiff that he, said defendant, together with one Taylor, had an opportunity to purchase what was known as the "Jay Ranch." That the lowest terms and price upon which it could be purchased were as hereinafter set forth. That defendant asked him to join with defendant, Taylor, and some other party in purchasing such land. That defendant stated they would buy said land as partners, each contributing an equal part of the cost and each to share equally in the profits therefrom. That later in July, 1907, the defendant stated to plaintiff that he, Arthur A. Taylor, William S. Stockwell, and Willard C. Lusk had contracted with Jay to purchase from said Jay 5,600 acres of land in Pennington county, being the "Jay Ranch," for $60,600, of which $58,800 was to be paid to said Jay and $1,800 to Farrar and Jepson, real estate brokers. That the first payment to Jay was $4,800, and that each of the four purchasers had paid Jay $1,200 as his share of such payment. That defendant would sell plaintiff one-half interest in said contract and land for exactly what the same had cost him. That plaintiff believed and relied upon said statements and purchased one-half of defendant's interest in said contract and land, and paid defendant therefor $600 cash, and agreed to pay one-eighth of all deferred payments to be made under said contract. That the said statements of defendant were false, in that the amount of the first payment to Jay was $2,000, instead of $4,800. That no portion of first payment was made by defendant, and that defendant had never paid Jay any money whatever upon said contract.
(2) That in July, 1907, defendant stated and represented to plaintiff that he had secured a contract with one Albert Bates for the purchase of 1,600 acres of land in Pennington county known as the "Bates Ranch," at the price of $17,600, to be paid in installments, the first payment to be $3,200, and asked plaintiff to join with him, Robert B. Tripp, and J. W. Ohlman in the purchase of said land, each to pay one-fourth of the purchase price, and afterward to sell the land and share the profits equally. That plaintiff believed said statements, and, relying upon the same, joined with the defendant, Taylor and Ohlman, in purchasing the Bates ranch, and paid $800 as his share of the first payment thereon. That the statements made to plaintiff by defendant were false, in that the purchase price of said land was $16,800, instead of $17,600, and that the first payment was $2,400, instead of $3,200.
(3) That the plaintiff paid defendant $166.66 as a commission for his time, services, and expenses in procuring the contract for the purchase of the Bates ranch, and that defendant agreed to refund said amount if title to said land should not be procured from said Bates. That the contract between said purchasers and Bates was afterward rescinded, and title to the land never procured.
(4) Plaintiff demanded judgment for $600 damages on tile first cause pleaded, $200 on the second, and $166.66 on the third, together with interest on each.
Appellant raises no question and assigns no error as to the judgment so far as the recovery of the $166.66 and interest thereon is concerned, and therefore such part of the judgment is affirmed.
Defendant's answer contained a general denial, and, in addition thereto, the following, in substance:
(1) That in July, 1907, the Yankton Land & Investment Company had the exclusive sale of the land known as the Jay ranch, and that the officers of said Yankton Land & Investment Company informed defendant that Farrar & Jepson, real estate brokers of Rapid City, had a contract with Joseph Jay, the owner of said land, authorizing them to sell the same for $56,000 net to Jay. That Farrar & Jepson had placed said land in the hands of the Yankton Land & Investment Company for sale at the net price of $57,800. That said company had fixed its commission at 50 cents per acre, and would sell said land for $60,600 net, $4,800 of the purchase price to be paid in cash and the balance in certain deferred payments. That shortly thereafter William S. Stockwell, Willard C. Lusk, Arthur A. Taylor, and the defendant entered into an agreement to purchase said land for the price and upon the terms offered by said Yankton Land & Investment Company. That said purchasers made the first payment of $4,800 on said land, of which $2,000 was paid to Jay and $2,800 to the Yankton Land & Investment Company for its commission. That thereupon the said Jay entered into a contract in writing with said Stockwell, Lusk, Taylor, and defendant for the sale of said land to them for $60,600, of which $4,800 was to be paid in cash and the balance in deferred payments. That about July 20, 1907, plaintiff purchased of defendant one-half of defendant's one-fourth interest in the Jay ranch and in the contract for the purchase thereof, and paid defendant therefor $600 cash, and agreed to pay one-eighth of all deferred payments.
(2) That in July, 1907, the Yankton Land & Investment Company had the exclusive sale of the land known as the Bates ranch, and the officers of said company informed the defendant that Farrar & Jepson had a contract from Albert Bates, the owner of said land, authorizing them to sell the same for $16,000 net to said Bates. That Farrar & Jepson had placed said land in the hands of the Yankton Land & Investment Company for sale at the net price of $16,800. That said company had fixed its commission at 50 cents per acre, and would sell said land for $17,600 net, $3,200 of the purchase price to be paid in cash, and the balance in certain deferred payments. That shortly thereafter the defendant stated to plaintiff the price and terms upon which the land could be purchased. That thereupon the plaintiff, defendant, Robert B. Tripp, and J. W. Ohlman entered into a written agreement to purchase said land for the price and upon the terms last aforesaid. That thereafter, and about July, 20, 1907, the said purchasers made the first payment of $3,200 on said land, $1,600 of which was paid to said Albert Bates, $800 to Farrar & Jepson for their commission, and $800 to the Yankton Land & Investment Company for its commission. That after making said payment, and about July 30, 1907, the said Albert Bates entered into a written contract with the plaintiff, defendant, Tripp, and Ohlman for the sale of said land to them for $17,600, of which $3,200 was to be paid in cash and the balance in deferred payments.
We think the evidence offered by the plaintiff fairly tends to sustain all of the allegations of the complaint. The contract for the purchase of the Bates land is fully set forth in the opinion in the case of Bates v. Loffler, 28 S.D. 228, 133 N.W. 283, just decided by this court, and reference is made thereto for its contents. The contract with Jay was similar in regard to the division of the payments, and in neither contract was there anything to reveal the fact that any one other than the vendor was to receive any part of the purchase price. The parties to this suit entered into a written contract for the sale to plaintiff by defendant of a one-half of defendant's fourth interest,...
To continue reading
Request your trial