Griggs v. Meek

• Decision Date: 17 November 1927
• Docket Number: 1333
• Citation: 37 Wyo. 282,261 P. 126
• Parties: GRIGGS v. MEEK, ET AL. [*]
• Court: Wyoming Supreme Court

261 P. 126

37 Wyo. 282

GRIGGS v. MEEK, ET AL. ^[*]

No. 1333

Supreme Court of Wyoming

November 17, 1927

Rehearing Denied February 16th, 1928, Reported at: 37 Wyo 282 at 296.

APPEAL from District Court, Uinta County; JOHN R. ARNOLD, Judge.

Action by Norris W. Griggs against Otto Meek and others. From a judgment for plaintiff, defendants appeal.

Affirmed.

Abraham Crawford, H. H. Henderson and Wade M. Johnson, for appellants.

The judgment is not sustained by the pleadings; the action of respondent in accepting the Goodwall money and using it, was a ratification of the trade. Black Resc. etc. Contracts, 595 596; Schiffer v. Dietz, 83 N.Y. 300; Richards v. Lowe, 149 F. 625; Dorr v. Alford, (Ia.) 82 N.W. 789; Levine v. Whitehouse, (Utah) 109 P. 2; Gallagher v. O'Neill, (Nebr.) 111 N.W. 582. He did not tender repayment of the money; the trial court erred in finding that plaintiff had been damaged more than the amount of money collected by him upon the Goodwall note; the evidence failed to establish that the Otto Meek notes were not good notes and the makers thereof solvent; the trial court further erred in considering evidence taken in April 1920 as a part of the hearing had in May 1923.

P. W. Spaulding, for respondent.

The evidence clearly established plaintiff's allegations of fraud and plaintiff was not required to bring an action for ejectment or quiet title. Macey Co. v. Macey, 106 N.W. 722. The deed from plaintiff to defendant was void for want of a grantee in being. Rixford v. Ziegler, 88 P. 1095; Nilson v. Hamilton, 174 P. 626; 18 C. J. 158; Robinson v. Davis, (Wyo.) 187 P. 932; Interstate Co. v. Lakeview Canal, 224 P. 851. There was no one to receive delivery of the deed for the corporation. 14 C. J. 520. The taking of a note for a third person will not extinguish a prior debt. Note to 25 L.R.A. (N.S.) 18; 14 C. J. 243; Story Eq. Jur. (14th ed.) Vol. 1, sec. 355. Inadequacy of consideration is convincing evidence of fraud. Wyo. Stockmen's Loan v. Johnston, 240 P. 449; Liebhardt v. Lawrence, (Utah) 120 P. 219. Unless all of defendants are prejudiced by the ruling, it is not error; if it be good as to one, it is good as to all, since they appealed jointly. Meador v. Blonde, (Wyo.) 244 P. 222; McIntosh v. Wales, 134 P. 280; McManus v. McGrath, 126 P. 44; Ditch Co. v. Peterson, (Wyo.) 108 P. 72; Greenwalt v. Co., 16 Wyo. 226; 38 Cyc. 1944; Casper Co. v. Marcus, 223 P. 765. The evidence taken at the first hearing was properly considered at the adjourned hearing. Defendants would not have been entitled to a specific performance. Kaiser v. Barron, (Calif.) 96 P. 807; Hobbs v. Davis, 143 P. 735. Where a presumption of fraud is created it must be repelled by clear evidence. Bank v. Frantz, (Wyo.) 239 P. 531. The notes were worthless and the judgment of the court below should be sustained. Assignments of error must be several and not joint as they do not affect all parties. Meador v. Blonde, supra. It is the province of a court of equity to protect vendor's liens. Baldwin v. McDonald, (Wyo.) 156 P. 35; Lakeview Canal Co. v. Hardesty, (Wyo.) 224 P. 856; Platte Co. v. Frantz, 229 P. 534.

Before POTTER, Justice, TIDBALL and BROWN, District Judges. POTTER, Justice, and TIDBALL, District Judge, concur.

OPINION

BROWN, District Judge.

This case comes to this court on direct appeal. The parties therefore will remain as in the lower court.

The defendant Percy Meek is a son of Otto Meek. The defendant Western Investment Company is a Utah corporation, organized by defendant Otto Meek, May 29, 1919.

This is an action to set aside the contract of sale of the ranch, and the live stock thereon, consisting of horses, cattle, and the farm machinery used in connection therewith belonging to plaintiff, on the ground and for the reason that it was induced by the fraudulent representations of the defendant, Otto Meek. The defendant, Otto Meek, met plaintiff in the public highway at Fort Bridger and approached him with a proposition to buy his ranch, live stock, and farm machinery. There seems to have been no difficulty in arriving at the price. The defendant readily agreeing to pay the price asked, $ 13,000.00, in case the plaintiff would accept as part of the purchase price a note of Goodwall for $ 2000.00, three notes of East for $ 1000.00 each, a note of Bennett for $ 5000.00, and a note of Condra for $ 1200.00, the balance of $ 1800.00 to be paid in cash. Defendant represented at the time that all of these notes were good notes, that the makers thereof were financially responsible, that the notes would be paid when due and that he would guarantee their payment, and assist in their collection. The parties met again the next day at Stockgrowers Bank in Evanston and closed the bargain. A deed to the ranch property was made to defendant Western Investment Company, which company Otto Meek was then organizing. During the time the notes were being transferred to plaintiff, he stepped out of the room for a few minutes, and upon his return he noticed that on one of the notes the words, "without recourse" were written over Otto Meek's signature, but he was unacquainted with commercial matters and did not know that those words so used excused defendant from liability. The restricted endorsement had been placed upon all of the notes except the East notes. Defendant, Otto Meek, asked to take the East notes to have an error in them corrected, but instead of returning the original notes, corrected as he had stated, he had new notes made running direct to plaintiff, not endorsed, extending the payment for one year on each note. Otto Meek received the deed to the ranch, delivered it to the County Clerk for record and received it again after it had been recorded. Shortly thereafter the property covered by this deed was transferred by the Western Investment Company in consideration of One Dollar to defendant Percy Meek. The Goodwall note of $ 2000.00 was collected after this suit was brought. None of the other notes was collected or could be collected. The other makers of the notes had all been in the employ of Otto Meek on a salary. None had any property and the reputation of each for solvency was bad.

At the close of plaintiff's case defendant rested without offering any evidence in support of his case. The court found that the contract was induced by the fraudulent representations of defendant, Otto Meek, that plaintiff had been damaged more than the $ 3800.00 he had received, and rendered judgment in plaintiff's favor.

The defendant brings the case to this court on direct appeal.

The trial in the lower court was commenced on the 22nd day of April, 1920. At the close of plaintiff's case, and during the arguments on defendants' motion for non-suit and dismissal of the case, plaintiff asked to be permitted to file an amended petition. This was granted by the court. The time for filing same was fixed by the court at forty five days; the same period thereafter was allowed for answer or other pleading by defendants, and fifteen days thereafter for a reply, and said order recited that plaintiff had asked that the case be continued for a reasonable time.

The defendants urge the overruling of their demurrer to the amended petition as error. Just wherein the amended petition fails to state a cause of action is not pointed out in defendants brief. We have carefully examined the amended petition and think it cannot be attacked on general demurrer. After adjourning the case in April, 1920, to permit plaintiff to file an amended petition, and defendants to join issue thereon, the cause drifted to May 10, 1923. At this time, on taking up the case, the court held, to which an exception was taken by defendants, that the hearing at this time was a continuation of the trial started April 22, 1920, and that it would consider at this time the evidence taken at such former hearing. This action of the trial court is relied upon by defendants for a reversal of the case.

In so holding, the court stated as its understanding at the time the former trial was continued or adjourned that the evidence that had been admitted would be considered applicable "in the continuance of the case," to which one of counsel for defendants replied that while he realized there was no use of going over the testimony two or three times and he had no desire to do so, some of the evidence previously taken might not be applicable or might be objectionable because of the amended petition. Whereupon, plaintiff's counsel stated in effect that there had been no substantial change in the pleading, but that the action was and had remained one to set aside a void deed, the evidence having been to the effect that plaintiff had received no consideration. The court then stated that "the court considers that this case was continued, and the parties allowed to amend their pleadings, and that this is a continuation of the original hearing," and that "the evidence heretofore adduced in so far as the same is applicable to the present amended pleadings will be considered by the court." Thereupon, counsel for defendants expressed a desire to except, whereupon the court continued, "I believe that was the understanding at the time we continued the case, and it is so ruled, and the exception is allowed." We think this colloquy, shown in the record, may be taken as showing an understanding of the court and parties at the time the trial in 1920 was adjourned, that the evidence already in should be considered upon the further trial of the case, except that counsel for defendants desired to be in a position where they might object to such parts of the former testimony as they deemed inapplicable under the new pleading, or that they might be permitted to tender such objections, and that seems to have been...