Johnson v. Burnside

• Decision Date: 17 August 1892
• Citation: 3 S.D. 230,52 N.W. 1057
• Parties: JOHNSON, Plaintiff and respondent, v. BURNSIDE, Defendant and appellant.
• Court: South Dakota Supreme Court

3 S.D. 230

52 N.W. 1057

JOHNSON, Plaintiff and respondent,

v.

BURNSIDE, Defendant and appellant. South Dakota Supreme Court Appeal from County Court, Minnehaha County, SD Hon. E. Parliman, Judge Affirmed W. C. Fawcett Winsor & Kittredge, Sioux Falls, SD Attorney for appellant. U. S. G. Cherry, Sioux Falls, SD Attorney for respondent. Opinion filed Aug. 17, 1892

CORSON, J.

This was an action of claim and delivery to recover the possession of certain chattels, of which the plaintiff claimed to be the owner. Verdict and judgment for the plaintiff, and defendant appeals. It is alleged in the complaint, briefly stated, that the chattels were obtained from the plaintiff by the defendant by means of fraud and false pretenses on the part of the defendant and certain other persons, to the plaintiff unknown, with whom said defendant had entered into a conspiracy to defraud and cheat the plaintiff, by inducing him to part with his said chattels for comparatively worthless real estate in the city of Sioux Falls. It is further alleged that said fraud was accomplished by said defendant and his confederates pretending that two certain lots situated in the Highland addition to the city of Sioux Falls, equal in value to the said chattels, pointed out and shown to the plaintiff, would be and were conveyed to the plaintiff in exchange for his said chattels, which, in fact, were not so conveyed or described in the deed delivered to him, but in lieu thereof two other lots, in Phil Sheridan’s addition to said city, were fraudulently described and inserted in said deed; and which latter lots were of little or no value, as compared with the two lots pointed out and shown the plaintiff in said Highland addition, which it was represented by the defendant would be conveyed to this plaintiff. The defendant answered, denying all the allegations of the complaint except that the plaintiff, prior to the alleged transfer, was the owner of the property described in this complaint. When the cause was called for trial, the defendant objected to the introduction of any evidence on the part of the plaintiff, on the ground that his complaint did not state facts sufficient to constitute a cause of action. The objection was overruled, and defendant excepted, and he now assigns said ruling as error.

It is contended by the learned counsel for the appellant that the complaint is insufficient—First, because it does not allege that the plaintiff executed and tendered to the defendant a deed for the two lots conveyed to him, before the commencement of this action; and, second, because there is no allegation that plaintiff relied upon the alleged false representations made by the defendant.

The averments in the complaint as to the tender are “that the plaintiff tendered to the defendant the deed which had been delivered to him, the same not having been recorded.” Assuming, without deciding, that the title to the two lots described in the deed passed to the plaintiff, and that a reconveyance was necessary to revest the title in the grantors, this allegation was clearly insufficient, as an offer to redeliver the deeds received by him was not an offer by the plaintiff to restore to defendant the property he had received. “Redelivering a grant of real property, or canceling it, does not operate to retransfer the title.” Comp. Laws, § 3233. See, also, Ahrens v. Adler, 33 Cal. 608; Rogers v. Rogers, 53 Wis. 36, 10 N.W. 2; Wilke v. Wilke, 28 Wis. 296; Bogie v. Bogie, 35 Wis. 659. Had a demurrer, therefore, been interposed at the proper time to the complaint, it would have been the duty of the court to have sustained it. But we are of the opinion it was an error for which no new trial should be granted, as the complaint was amendable, and, had the motion been granted, the court had the discretion to permit the complaint to be amended, and it would have been its duty to exercise it by permitting such amendment, or by receiving the evidence to supply the defect in the complaint, and amending the complaint subsequently to conform it to the facts proved. A demurrer is the proper proceeding to test the sufficiency of a pleading, and a party, by omitting to demur and pleading to the merits, is not in a position to claim the indulgence of the court. Bauman v. Bean, 57 Mich. 1, 23 N.W. 451; Norton v. Colgrove, 41 Mich. 544, 3 N.W. 159; Barton v. Gray, 48 Mich. 164, 12 N.W. 30. If, therefore, the allegations omitted were supplied by the evidence, the defect in the complaint was substantially cured. Whittlesey v. Delaney, 73 NY 571; Lounsbury v. Purdy, 18 NY 515. In the latter case the supreme court of New York, speaking by Mr. Justice Comstock, says: “There remains cute other question to be examined. At the commencement of the trial the defendant moved to dismiss the suit on the ground that the complaint did not state facts sufficient to constitute a cause of action. The motion was denied, and we are now asked to reverse the judgment on that ground. … It may be that, for want of these allegations, the complaint fails to make out a case of resulting trust, or to show a right to any relief. But it does not follow that the judge at the trial was bound to dismiss the suit. We are referred to section 148 of the Code of Procedure, declaring that an omission to demur does not waive the objection that the complaint does not state facts sufficient to constitute a cause of action. But the terms and spirit of that section are satisfied by holding that the right to object at the trial is not absolutely gone by a failure to demur. … If, however, the proof supplies the facts which the complaint omits to state, it is competent for the court to amend the pleadings, and the objection will be overruled. … As the complaint could thus be amended at the trial, and as it can still be amended after judgment, in furtherance of justice, the alleged defect in statement is no ground for an appeal to this court.” This rule applies only to complaints capable of being made good by amendment, and not to complaints that fail altogether to set out a substantial cause of action, and are incapable of being made good by amendment. Bauman v. Bean, supra. An objection to the latter class of complaints may be taken in any stage of the proceedings. Porter v. Booth,(1891).

In the case at bar all the evidence pertaining to the offer to restore to the defendant the consideration received for the chattels sought to be recovered was received on the trial without objection, and the only question, therefore, is, did it show that plaintiff made a sufficient offer to reconvey the property or lots conveyed to him before the commencement of this action? The plaintiff testified: “When I met Mr. Burnside, after l found out the property conveyed to me was not the same property shown me, he says, ‘You are not satisfied with your deal?’ I says, ‘I ain’t satisfied with no swindle. I want my team back, and I will give you your lots back.’ I told Mr. Burnside I wanted the team, and I would give him his lots. He said, ‘No, sir,’ and went on.” Our Civil Code, § 3591, provides as follows: “Rescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules : … (2) He must restore to the other party everything of value which he has received from him under the contract, or must offer to restore the same upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.” When the defrauded party seeks to recover his property, in a common-law action, on the ground that he has rescinded the contract, he must ordinarily allege and prove that he has restored, or offered to restore, to the other party, all that he himself has received on account of the contract, before he can maintain the action. Snow v. Alley, 144 Mass. 546, 11 NE 764: Estabrook v. Swett, 116 Mass. 303; Conner v. Henderson, 15 Mass. 319; Morse v. Brackett, 98 Mass. 205; Perley v. Balch, 23 Pick. 283; Thayer v. Turner, 8 Mete. (Mass.) 550; Pearsoll v. Chapin, 44 Pa. St. 9. In equity a different rule prevails, as the action at law proceeds upon a rescission of the contract, while in equity the action proceeds for a rescission of the contract. Gould v. Bank, 86 NY 75; Allerton v. Allerton, 50 NY 670. But, while it is necessary in an action at law to allege an offer to restore, a formal tender is not necessary, unless the party consents to the rescission, when the party seeking to rescind must take such formal tender. But if the party refuses to receive the property back, and return the...