Gwynne v. Ramsey

• Decision Date: 09 November 1883
• Docket Number: 8253
• Citation: 92 Ind. 414
• Parties: Gwynne v. Ramsey
• Court: Indiana Supreme Court

92 Ind. 414

Gwynne v. Ramsey

No. 8253

Supreme Court of Indiana

November 9, 1883

Petition for a Rehearing Overruled Jan. 2, 1884.

From the Shelby Circuit Court.

The judgment is reversed, with costs, and the cause is remanded for a new trial, and for further proceedings not inconsistent with this opinion.

S Major, A. Major, B. F. Love and H. C. Morrison, for appellant.

T. B Adams and L. T. Michener, for appellee.

OPINION

Howk, J.

This was a suit by the appellee against the appellant to recover certain moneys which the appellee alleged he had paid the appellant upon a contract for the purchase of certain real estate, which contract he claimed had been rescinded. Appellee's complaint contained three paragraphs, to which the appellant's demurrer was overruled by the court. The appellant answered in three paragraphs, of which the first paragraph was a general denial, and each of the other two paragraphs was a special or affirmative answer. The court sustained the appellee's demurrer to the third paragraph of answer, and to this ruling appellant excepted. To the second paragraph of answer appellee replied by a general denial. The issues joined were tried by a jury, and a verdict was returned for appellee, assessing his damages in the sum of $ 1,135. Over appellant's motion for a new trial and his exception saved, the court rendered judgment on the verdict.

The first error complained of by the appellant in argument is the overruling of his demurrer to the first paragraph of appellee's complaint.

In this first paragraph of complaint the appellee alleged, in substance, that on the 20th day of January, 1873, the appellant bargained and sold to the appellee a certain tract of land in Shelby county, Indiana, containing forty acres, more or less, upon the following terms and conditions, to wit: Appellee was to pay appellant therefor $ 500 down, by conveying to him a parcel of real estate containing six acres, more or less, and the sum of $ 500 each year thereafter for three years, and appellee was to have and to hold possession of said forty-acre tract, and the appellant was to take all the wood cut by appellee and delivered at the railroad as part payment on the yearly payments as aforesaid, and upon the payment of the purchase-price of said land as aforesaid, he was to execute to appellee a good and sufficient deed for the conveyance of said land to appellee, which contract was reduced to writing, but has since been accidently destroyed by fire, and therefore the appellee could not file a copy thereof with the first paragraph of this complaint. And the appellee averred that, in pursuance of such contract, he conveyed to appellant the said six acres of land in discharge of the first payment of $ 500; that thereupon, in pursuance of said agreement, appellant put appellee in possession of the forty-acre tract as aforesaid; that appellee delivered to appellant, at the railroad, ----- wood, of the value, to wit, of $ 1,200, and paid appellant's turnpike tax, at his request, to the amount of $ 43.50. A bill of particulars of which wood and money paid, marked "Exhibit A," was filed with and made part of such first paragraph of complaint. And the appellee averred that he held possession of such forty-acre tract until March 1st, 1877, at which time appellant ousted appellee, took possession of the land and rescinded such contract without, in any way, paying or reimbursing appellee for the six-acre tract of land conveyed to appellant as aforesaid, or for the wood delivered, the money paid, etc., and without placing appellee in statu quo; that from that time until the commencement of this suit the appellant had continued to hold, and then held, the possession of said land and exercised full and absolute control thereover; that appellee acquiesced in such rescission by the appellant, and ever since then had treated such contract as rescinded, and brought this suit because of such rescission, and that, by reason of the premises, the appellee had sustained damages in the sum of $ 3,000. Wherefore, etc.

In discussing the sufficiency of this paragraph of complaint the appellant's learned counsel insist that the paragraph is bad, on the demurrer thereto, for the reason that the appellee has alleged therein mere legal conclusions instead of the facts from which such conclusions are or might be drawn. Counsel say: "The ouster and rescission thus alleged are but conclusions, and not facts showing an ouster and rescission, which is in violation of a well settled rule of pleading. If the ouster of Ramsey has any legal force or effect, the pleader should have averred how Gwynne ousted him, by physical force or by suit at law, and stated the circumstances, if any, showing the ouster to be wrongful; and he should also have averred that he did so oust him with the intention of rescinding the contract." This position of appellant, we think, is untenable, and the argument of his counsel is unsound. The ouster of appellee from the land was an alleged fact, and not a legal conclusion; while the manner in which he was ousted was matter of evidence merely, whether he was ejected by physical force or by process of law. Pleading matter of evidence is in violation of the rule enunciated in the second clause of section 338, R. S. 1881, which requires the complaint to contain "A statement of the facts constituting the cause of action." The alleged rescission of the contract was also the allegation of a fact and not merely of a conclusion. The manner of rescinding the contract was a matter to be shown by the evidence, and not by the allegations of the complaint. Smith v. Felton, 85 Ind. 223.

Doubtless, it is true as a general proposition, that a contract can only be rescinded by the common consent of all the parties thereto. One party can no more rescind than one party can make a valid and binding contract between two or more parties. But the vendor of real estate who stipulates in his contract that the vendee shall have and hold the possession of such real estate, and puts him in possession thereof, and thereafter ousts him from such possession and resumes and holds the possession as against his vendee, thereby evinces his intention to rescind such contract. If thereupon the vendee acquiesces in these acts of the vendor as indicative of his intention to rescind the contract, and brings an action to recover his damages occasioned by such rescission, it may well be said, we think, that both parties concur in and consent to the rescission. We know of no reason why the mutual consent of the parties to the rescission of the contract may not be shown by their acts, as conclusively and satisfactorily as by evidence tending to prove an express rescission. When the rescission is shown, either by express agreement or by the acts of the parties clearly indicative thereof, an action will lie to recover whatever may have been paid or delivered, or the value thereof, on account of such rescinded contract. Fowler v. Johnson, 19 Ind. 207; Dantzeiser v. Cook, 40 Ind. 65; Dotson v. Bailey, 76 Ind. 434.

We are of opinion, therefore, that the court committed no error in overruling either appellant's motion to make the first paragraph of complaint more specific, or his demurrer to such paragraph. Nor is there any available error in the decision of the court in overruling the motion to strike out or reject certain parts of the first paragraph of complaint. The effect of such ruling, even if erroneous, was at most to "leave surplusage in the record, which does not vitiate that which is good." Mires v. Alley, 51 Ind. 507. House v. McKinney, 54 Ind. 240; City of Crawfordsville v. Brundage, 57 Ind. 262. The first paragraph of complaint is sufficient, and no objection is urged here to either the second or third paragraph. We may remark, however, that the appellee sued, in the second paragraph of his complaint, for so much money had and...