Hocksprung v. Young

• Decision Date: 13 March 1914
• Citation: Hocksprung v. Young, 27 N.D. 322, 146 N.W. 547 (N.D. 1914)
• Court: North Dakota Supreme Court

146 N.W. 547

27 N.D. 322

T. R. HOCKSPRUNG v. ROSE B. YOUNG et al

Supreme Court of North Dakota

March 13, 1914

This is an appeal from the judgment of the District Court of Renville County, Honorable K. E. Leighton J.

Affirmed in part and reversed in part.

Grace & Bryans, for appellant.

As to the first cause of action, there being no objection to the sufficiency of the complaint on any grounds, the complaint states facts constituting a cause of action, and should be liberally construed in favor of the plaintiff, even though objection to the introduction of evidence had been made. Johnson v. Burnside, 3 S.D. 230, 52 N.W. 1057; Schweinber v. Great Western Elevator Co. 9 N.D. 113 81 N.W. 35; Chilson v. Bank of Fairmount, 9 N.D. 96 81 N.W. 33; James River Nat. Bank v. Purchase, 9 N.D. 280, 83 N.W. 7; Weber v. Lewis, 19 N.D. 473, 34 L.R.A.(N.S.) 364, 126 N.W. 105; 31 Cyc. 729; 2 Cyc. 689, 691.

As to the second cause of action for damages, this is admitted. 13 Cyc. 90 B, 98 H, 182 D, 192 B.

Swenson & Rodsater, Greenleaf, Bradford, & Nash, for respondent.

In mortgage-foreclosure proceedings a power of attorney from the holder of the mortgage is necessary, and the fact that one was given must be set forth in the complaint. Rev. Codes 1905, § 7455; 1 Estes, Code Pl. p. 190; Green v Palmer, 15 Cal. 411, 76 Am. Dec. 492.

From a failure to aver material facts in a verified complaint, it must be construed as implying that they do not exist. Callahan v. Loughran, 102 Cal. 476, 36 P. 835.

It is a general rule that the doctrine of liquidated damages does not apply to contracts for the payment of money alone; in such cases courts construe the damages as a penalty. 13 Cyc. 101; Gower v. Carter, 3 Iowa 244, 66 Am. Dec. 71; Graham v. Bickham, 4 Dall. 149, 1 L.Ed. 778, 1 Am. Dec. 331.

OPINION

SPALDING, Ch. J.

The complaint in this action contains two counts. The first is in the usual form for the foreclosure of a real estate mortgage. No demurrer was interposed or motion made calling attention to any defect therein, and the allegations of the answer need not be considered further than that, as applicable to the point presented on this appeal, they are a general denial.

On the offer of evidence on the part of the plaintiff, no objection was made to the introduction of evidence in support of the first count, but after the trial the court made a finding, among others, that no evidence "was offered or introduced showing or tending to show that the plaintiff had executed or delivered to R. H. Grace or W. E. Bryans, or either of them, or to any person, a power of attorney to foreclose said mortgage, or the possession of such power of attorney by either or any of said persons," and, as a conclusion of law, held that by reason of the fact so found the complaint did not state facts sufficient to constitute a cause of action as to the first cause, and that the action should be dismissed for the defective pleading and proof aforesaid.

This raises the question as to the effect under the circumstances of this case of the provisions of § 7455, Rev. Codes 1905, which is: "It shall be unlawful for any agent or attorney of any mortgagee, assignee, person or persons, firm, corporation, executor, administrator, trustee, or guardian, owning or controlling any real estate mortgage to foreclose the same until he shall receive a power of attorney from such mortgagee, assignee, person or persons, firm, corporation, executor, administrator, trustee or guardian, authorizing such foreclosure, and in foreclosure proceedings by action the possession of such power of attorney shall be alleged in the complaint." The plaintiff attempted to comply with the requirement of this section, and P 6 of his complaint reads as follows: "That, prior to the commencement of this action, plaintiff executed and delivered to R. H. Grace, an attorney at law, of the city of Mohall, North Dakota, duly authorizing and empowering him to take all proceedings necessary for the foreclosure of plaintiff's said mortgage and the collection of plaintiff's said debt, and to commence and maintain this action." The sole imperfection claimed in this paragraph of the complaint is that it omits the words, "power of attorney," between "N. D." and the word "duly." This omission was undoubtedly a mistake in transcribing. Is it fatal to the pleading? Under § 6869, Rev. Codes, 1905, we are required to construe the pleading liberally with a view to substantial justice between the parties, and if there can ever be an instance which calls for the application of the rule of liberality in the construction of a pleading, it would seem to be presented here. Had any method been pursued by the defendant which would have called the attention of the plaintiff to the omission, it could have been supplied on the trial, and unquestionably would have been so supplied; but the error seems to have been either overlooked or carefully concealed until the court made its findings. No step was taken or act done in any manner calling the attention of the plaintiff to this mistake. Applying the statutory rule, we are satisfied that, without the words, "power of attorney," the pleading was sufficiently complete to comply with the requirements of § 7455, and that no person, of any ordinary degree of intelligence, knowing of the requirement of the statute as to pleading the power of attorney, could read P 6 of the complaint and fail to understand what the pleader had attempted to state therein.

It states that the plaintiff had executed and delivered to Grace, an attorney at law, something which is not named, but which is described as duly authorizing and empowering him to take all necessary proceedings for the foreclosure of the mortgage in question and the collection of the debt secured and to commence and maintain this action; and this, while not a perfect statement of the facts attempted to be stated, is sufficient to apprise the defendant of the fact of the possession of the power of attorney; and in the absence of a demurrer, any motion or objection apprising the plaintiff of the omission must be held sufficient. To hold otherwise would be in fact defeating justice on the...