Johnson v. Wagner

• Decision Date: 21 June 1919
• Citation: 174 N.W. 73,42 N.D. 542
• Court: North Dakota Supreme Court

174 N.W. 73

42 N.D. 542

A. C. JOHNSON, Respondent, v. AXEL WAGNER, Appellant

Supreme Court of North Dakota

June 21, 1919

Rehearing denied July 18, 1919.

Appeal from District Court of Cass County, A. T. Cole, J.

Modified and affirmed.

Affirmed. Respondent entitled to costs upon the appeal.

Pollock & Pollock, for appellant.

"Fraud in the making and obtaining of the instrument upon which respondent founds his action in claim and delivery could have been shown as a defense under a general denial" (Vallency v. Hunt, 20 N.D. 579; note in 34 L.R.A.(N.S.) 473), and certainly could be proved under the allegations thereof in an affirmative defense and counterclaim as contained in appellant's answer. Taylor v. Rice, 1 N.D. 72; Plano Mfg. Co. v Daleu, 6 N.D. 330; Lane v. O'Toole, 8 N.D 210; Arnett v. Smith, 11 N.D. 55; Sobolisk v. Jacobson, 6 N.D. 175; Plano Mfg. Co. v. Person (S.D.) 81 N.W. 897; Herried v. C. M. & S. P. R. Co. (S.D.) 159 N.W. 1064; 34 Cyc. 1499; Nolan v. Jones (Iowa) 5 N.W. 572; Gevers v. Farmer (Iowa) 80 N.W. 535; Bliss v. Badger, 36 Vt. 338; Merrill v. Wedgewood (Neb.) 41 N.W. 149.

"No rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool." Herried v. C. M. & St. P. R. Co. (S.D.) 159 N.W. 1065; Fargo Gas & Coke Co. v. Fargo Gas & E. Co. 4 N.D. 219.

"The question which is decisive on this point is this: Did plaintiff rely and act upon the false statements to his damage? Whether he relied upon them is not a question of law, but a question of fact purely. The question is not, whether the false statements should have induced plaintiff to part with his property, but is this, Did they induce him to do so? This is always for the jury, where there is substantial evidence warranting the conclusion that the false statements were relied upon." Chilson v. Houston, 9 N.D. 498, 502; Massey v. Rae, 18 N.D. 409; Waters v. Rock, 18 N.D. 45; Neilson v. Edwards, 34 S.D. 399, 148 N.W. 844; Baskerville v. Culver, 33 S.D. 424, 146 N.W. 595; Smith & Co. v. Kimble, 31 S.D. 18, 139 N.W. 348, Ann. Cas. 1916A, 497; Clark v. N. P. R. Co. 36 N.D. 509, L.R.A. 1917E, 399.

The materiality of the false and fraudulent representations relied upon is a question for the jury. Guild v. Moore, 32 N.D. 473.

Value is a question of fact for the jury. Clendenning v. Hawk, 8 N.D. 419; Haverson v. Anderson, 3 N.D. 540; Loftus v. Agrant, 18 S.D. 55, 99 N.W. 90.

"Undoubtedly a special verdict is defective which fails to determine all the material and controverted facts put in issue by the pleadings." Hart v. West Side R. Co. (Wis.) 57 N.W. 81.

Under a demand for a special verdict, questions to the jury must cover all material issues and facts and the whole question at issue. Block v. Milwaukee Street R. Co. 89 Wis. 371, 27 L.R.A. 365, 61 N.W. 1101; Morrison v. Lee, 13 N.D. 599; Sonnesyn v. Akin, 14 N.D. 261; Lathrop v. Fargo-Moorhead St. R. Co. 23 N.D. 257; Shrunk v. St. Joseph (Wis.) 97 N.W. 948; Note, Office of Special Verdict, 24 L.R.A.(N.S.) 5.

We contend that there can be but one final judgment in an action. Comp. Laws 1913, § 7679; Wagner v. Northern L. Ins. Co. 70 Wash. 210, 126 P. 434, 44 L.R.A.(N.S.) 338, note, 23 Cyc. 772; Tootle v. Cook, 4 Col. App. 111, 35 P. 193; Bethel v. Bethel (Ky.) 99 Am. Dec. 655; Garvin v. Martin (Wis.) 93 N.W. 473 and cases cited.

Harry Lashkowitz (Barnett & Richardson, of counsel), for respondent.

"Where two causes of action are set out in the same petition, and a trial is had, and separate verdict and judgment on each, and one is found on appeal to be correct and the other erroneous, that which is right will be affirmed, and the other reversed." Totten v. Cooke, 2 Met. (Ky.) 280.

"A judgment by default, directing the sale of a tract of land in general terms, without describing it, is void to that extent, but this does not impair a money judgment rendered in the same action." Gear v. Hart, 31 Tex. 135; Shean v. Cunningham, 6 Bush (Ky.) 126; Webb v. Bulger, 4 Hill (N.Y.) 588; New York v. Saratoga Co. 88 Hun, 568.

"The plaintiff may take judgment for the amount admitted to be due by the defendant in his affidavit of defense, and proceed to trial for the balance." Coleman v. Nantz, 63 Pa. 178.

"A claim for damages for breach of warranty, interposed by answer to a petition to recover the price of goods, is, in effect, a counterclaim; and the court can render judgment of the undisputed portion of the price, and allow the action to proceed as to the sum in dispute." Moore v. Woodside, 26 Ohio St. 537; Plummer v. Park (Iowa) 87 N.W. 534; Winton Co. v. Blomberg, 147 P. 21.

"Two judgments may be allowed in one action where the defendant defends only as to a portion of plaintiff's demand." Mester Co. v. Pope, 155 Ill.App. 667.

BIRDZELL, J. BRONSON, J. concurring in the result, GRACE, J., concurs.

OPINION

BIRDZELL, J.

This is an appeal from a judgment entered in the district court of Cass county in an action brought to recover personal property. The judgment awarded to the plaintiff the immediate possession of the property and costs and disbursements amounting to $ 193.27, with interest on the same. The defendant and appellant, Wagner, was a farmer who had lived in the vicinity of Gardner, North Dakota, for a number of years. He was the owner of a quarter section of land and personal property used in connection with his farming operations. His land was heavily mortgaged and a sheriff's certificate of foreclosure sale was outstanding in the fall of 1916. The indebtedness against the land aggregated about $ 6,700. In October, 1916, Wagner negotiated with Johnson, the plaintiff and respondent, for the sale or trade of his equity in the land and his personal property, the land being valued by Wagner at $ 7,600 and his equity therein at approximately $ 900. A deal was made which was evidenced by four instruments, as follows: 1. An agreement binding Wagner to convey the quarter section to T. D. Johnson, a brother of the plaintiff, in consideration of $ 50 per acre, to be paid by T. D. Johnson by discharging the encumbrances and paying the plaintiff $ 100 down, $ 100 in five days, $ 100 in ten days, the transfer to be made within thirty days. 2. A bill of sale executed for the expressed consideration of $ 1, whereby Wagner transferred to A. C. Johnson title to the personal property sought to be recovered in this action. 3. An agreement between A. C. Johnson and Wagner, whereby, in consideration of the bill of sale, Johnson agreed to quitclaim to Wagner a tract of land in Otter Tail county, Minnesota, consisting of 81.69 acres. 4. A quitclaim deed of the same land, executed by A. C. Johnson and wife. The parties entered upon the performance of the agreement, Johnson making certain payments which were retained by Wagner, but, upon demand being made for the delivery to the plaintiff of the personal property, Wagner refused. Thereupon this action was begun and claim and delivery proceedings were had, by virtue of which the plaintiff obtained possession of the property. The complaint in the action simply describes the personal property, alleges the plaintiff's ownership and right of possession, and places the value at $ 1,800. For a counterclaim the defendant, however, alleges the negotiations between himself and the plaintiff leading up to the sale or trade, and claims damages on account of misrepresentations made relating to the value of the Minnesota land. The alleged misrepresentations refer specifically to the amount of encumbrance against the land, the date of its maturity, the rental value, and to an agreement by the defendant to resell the land for the plaintiff within thirty days at $ 30 per acre without commission. There are also allegations to the effect that by crowding and coercing him the plaintiff induced the defendant to execute the papers in connection with the deal without being enabled to procure the advice and assistance of one A. E. Ingebretson, upon whom the defendant relied for advice, and that as so executed they did not safeguard the rights of the defendant according to the previous agreement to pay the plaintiff for his equity in the land in cash as soon as the contract would be reduced to writing between the parties. But defendant alleges his willingness to carry out the transfers in accordance with the agreement as alleged in the counterclaim and his determination to affirm the contract and bargain and to claim damages for the plaintiff's misrepresentations and fraud in reference to the character and value of the Minnesota land. The damages so claimed amount to $ 1,390.70. In his prayer for relief, the defendant seeks judgment for specific performance of the contract as alleged by him and the damages occasioned by the deceit in the sum of $ 1,390.70.

Upon the trial, at the end of the defendant's case, the plaintiff's attorney made three motions, as follows: For a directed verdict for the relief prayed for, i.e., the possession of the personal property; for the entry of an order denying specific performance of the contract; and for a directed verdict in favor of the plaintiff on the issue of damages presented by the counterclaim. At the close of the case, the motions were renewed. The first and second motions were then granted, and the third denied. The question of damages was submitted to the jury under special interrogatories, requiring a special verdict, and the record shows that the directed verdict on the issue of possession was delayed, at defendant's request, pending the determination by the jury of the questions submitted for the special verdict. The jury failed to arrive at the special verdict and to dispose of the question of damages, and it was discharged.

Upon this appeal no question is raised concerning the denial by ...