MacLeod v. Stelle

• Decision Date: 01 September 1926
• Citation: 249 P. 254,43 Idaho 64
• Parties: WILLIAM MACLEOD, Appellant, v. E. E. STELLE, Respondent, And GEORGE D. SATTERFIELD, Appellant, v. E. E. STELLE, Respondent
• Court: Idaho Supreme Court

249 P. 254

43 Idaho 64

WILLIAM MACLEOD, Appellant, v. E. E. STELLE, Respondent, And GEORGE D. SATTERFIELD, Appellant, v. E. E. STELLE, Respondent

Supreme Court of Idaho

September 1, 1926

PLEADING - MATTERS NOT DEMURRABLE - NONASSIGNABLE CAUSES OF ACTION - PARTIES - REAL GROUND OF DEMURRER NOT STATED-PLEADING TOLLING OF STATUTE OF LIMITATIONS-MOTION TO STRIKE UNAVAILABLE - CORPORATIONS-FRAUD-ELECTION OF REMEDIES-CAUSE OF ACTION NOT STATED-CAUSE OF ACTION ASSIGNABLE-CAUSES OF ACTION FOR FRAUD PROPERLY JOINED - APPEAL AND ERROR - DECISION SUSTAINING DEMURRER PLACED ON WRONG GROUND-RELIEF GRANTED-COSTS-DISCRETION OF COURT EXERCISED.

1. Complaint, because on several assigned causes of action not assignable, is not demurrable on ground of causes improperly united; assignability not being, under C. S., sec. 6688, test of right to join in one complaint.

2. Complaint on several assigned causes of action is not because they are nonassignable, subject to demurrer for defect of parties.

3. That plaintiff is not real party in interest is not ground for demurrer for defect of parties plaintiff, but is ground for demurrer for failure to state cause of action.

4. As between assignor and assignee on a completed assignment assignee is the real party in interest.

5. "No legal capacity to sue," as ground for demurrer is distinct from failure to state right of action in plaintiff.

6. Existence of defense, apparent on face of complaint, which will defeat plaintiff's present right to recover, such as nonassignability of the claim, is ground for demurrer for failure to state facts sufficient to constitute cause of action.

7. That when cause of action accrued defendant was, and ever since has been, out of the state, tolling running of statute, under C. S., sec. 6622, is sufficiently pleaded by allegation that he previously departed from the state, and ever since has been "a resident" of and "domiciled" in another state.

8. Defects of improper joinder of causes and nonassignability of claims, grounds for demurrer, cannot be reached by motion to strike.

9. A sale of stock is a sale of goods.

10. For fraudulent representations inducing purchase of goods, buyer may rescind contract, return or offer to return property, and sue for amount paid, or stand on contract, and sue for damages, difference between amount paid and value.

11. The two remedies for fraud inducing purchase of goods are inconsistent, and buyer must elect which to pursue.

12. Complaint for fraudulent representations inducing buying of stock is insufficient to state cause of action under either election of remedy, not stating return, offer to return, or excuse for absence thereof, nor that stock was of less value than paid.

13. Cause of action for fraud in sale of stock is assignable being for injury to property, and one which survives.

14. Causes of action for fraud in sales of stock may be joined as being for injury to property, under C. S., sec. 6688, subd. 7.

15. It is enough that complaint for fraud sufficiently and specifically alleges falsity of some of material allegations charged.

16. Where decision sustaining demurrer was placed on wrong grounds, though there was ground on which it could have been properly sustained, yet it appearing that plaintiff could have avoided the defect by amendment, and if given opportunity can still do so, cause will be remanded, under C. S., sec. 6446, with instructions to give him opportunity to present motion to amend, judgment to stand affirmed if he fails to do so in time limited.

17. Effect of decision on appeal being to modify judgment by refusing to sustain it on grounds stated therein and sustaining it on other grounds, appellate court will exercise its discretion to determine that costs be not allowed.

APPEALS from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens and Hon. M. I. Church, Judges.

Actions to recover moneys paid for stock in mining corporation. From judgments on demurrers, plaintiffs appeal. Reversed and remanded.

Cause remanded with instructions.

P. E. Cavaney, for Appellants.

At common law, survivability and assignability were convertible terms, and the action did not survive against the tort-feasor unless his estate was enriched by the tort. (Willard v. Mohn, 24 N.D. 390, 139 N.W. 979; Houghton v. Butler, 166 Mass. 547, 44 N.E. 624; Borchert v. Borchert, 132 Wis. 593, 113 N.W. 5; Yearteau v. Bacon's Estate, 65 Vt. 516, 27 A. 198; Jenkins v. Bennett, 40 S.C. 393, 18 S.E. 929; Hegerich v. Kedaie, 99 N.Y. 258, 52 Am. Rep. 25, 1 N.E. 787.)

All actions in this state must be prosecuted by the real party in interest. (C. S., sec. 6634; 3 Sutherland's Code of Pleading and Practice, p. 2012.)

"Generally, moneys due and to become due, and every demand connected with the right of property, real or personal, are assignable." (Truax v. Slater, 86 N.Y. 630; Stott v. Franey, 20 Ore. 410, 23 Am. St. 132, 26 P. 271.)

"Statutes have been passed in most of the states which increased the number of causes of action which survive, so as to include all injuries to property by which its value has been diminished." (3 Sutherland's Code of Pleading and Practice, p. 2015.)

"As illustrations of such causes of action which survive and are consequently assignable, may be mentioned claims arising from the negligent use of real or personal property, or for the conversion of the latter, or for injuries to the same, or for fraudulently inducing one to enter into the marriage relation, or for fraud or deceit in contracts relating to the sale of real or personal property." (Haight v. Hayt, 19 N.Y. 464; Byxbie v. Wood, 24 N.Y. 607; Johnson v. Bennett, 5 Abb. Pr., N. S., 331; Woodbury v. Deloss, 65 Barb. (N. Y.) 501; Grocers Nat. Bank v. Clark, 48 Barb. (N. Y.) 26; Conaway v. Co-op. Bldrs., 65 Wash. 39, 117 P. 716; Pomeroy's Code Remedies, 3d ed., sec. 147-150; Metropolitan L. Ins. Co. v. Fuller, 61 Conn. 252, 29 Am. St. 196; Dean v. Chandler, 44 Mo.App. 338; Peckham v. Smith, 9 How. Pr. (N. Y.) 436; Johnson v. Shuey, 40 Wash. 22, 82 P. 123.)

Assignability of chose in action is now the rule, and nonassignability the exception. Practically the only class of choses in action which are not assignable are those for torts for personal injuries, and for wrongs done to the person, the reputation, or the feelings of the injured party. (2 R. C. L., sec. 3, Assignments, p. 596.)

If the complaint shows that the action is based on an implied contract, allegations of fraud are not to be regarded as constituting any part of the statement of the cause. ( People v. Wood, 121 N.Y. 522, 24 N.E. 952; Vande Weile v. Garbade, 60 Ore. 585, 120 P. 752.)

Defendant in this action cannot object to the nature of the action. ( Hornefius v. Wilkinson, 51 Ore. 45, 93 P. 474; Morgans Louisiana, etc., v. Stewart, 119 La. 392, 44 So. 138; Pomeroy's Code Remedies, 3d ed., secs. 493, 571.)

C. S., secs. 6609 and 6610 have no application in the cases at bar. Sec. 6611, subd. 4, applies. The test of subd. 4 is not whether fraud or mistake occurred in a contract or independent of contract, but the test is whether the action seeks relief from, or on account of a fraud or mistake. ( Hillock v. Idaho Title & Tr. Co., 22 Idaho 440, 126 P. 612, 42 L. R. A. (N. S.), 178; Kirby v. Lake Shore etc. Ry. Co., 120 U.S. 130, 7 S.Ct. 430; 30 L.Ed. 569; San Pedro Lbr. Co. v. Reynolds, 121 Cal. 74, 53 P. 410; Allen v. State, 6 Kan. App. 915, 51 P. 572; Christensen v. Jessen, 5 Cal. Unrep. 45, 40 P. 747; Lewey v. Fricke Coke Co., 166 Pa. 536, 45 Am. St. 684, 31 A. 261, 28 L. R. A. 283; Lataillade v. Orena, 91 Cal. 565, 25 Am. St. 219, 27 P. 924.)

The allegations in the amended complaints are sufficient to show that the respondent was a nonresident of the state of Idaho. (Teats v. Caldwell, 28 Cal.App. 206, 151 P. 973; Victor Oil Co. v. Drum, 184 Cal. 226, 193 P. 243.)

While appellants herein do not admit that appellants have changed the causes of action in the amended complaint from an action ex delicto to one ex contractu, still such amendment might be made without affecting the rights of the respective parties, and is permissible. (Hodges v. Alexander, 94 Okla. 122, 220 P. 927.)

Karl Paine and Barber & Barber, for Respondent.

The complaints fail to state a cause of action. (Cowen v. Harrington, 5 Idaho 329, 48 P. 1059; 27 C. J., p. 18; 12 R. C. L., Fraud & Deceit, sec. 155; Smith v. Neeley, 39 Idaho 812, 231 P. 105; Pioneer Bank & Trust Co. v. MacNab, 41 Idaho 146, 238 P. 295; 16 Cal. Jur. , pp. 626, 627.)

Appellants allege no facts which afford a basis for estimating damages, or to show that they were damaged. Their denials of the alleged fraudulent representations are all in the form of negatives pregnant. (Kemmerer v. Pollard, 15 Idaho 34, 96 P. 206; Wright v. Spencer, 39 Idaho 60, 226 P. 173.)

The causes of action attempted to be plead are not upon any implied contract, but in tort, for fraud and deceit. ( Kemmerer v. Pollard, supra; 1 Am. & Eng. Ency. of L. & Pr., pp. 1057-59; 1 C. J. 1015, n. 31, 32; Holt Ice Co. v. Jordan Co., 25 Ind.App. 314, 57 N.E. 575; 27 C. J., p. 29; Francisco v. Hatch, 117 Wis. 242, 93 N.W. 1118; Boehrer v. Jergens etc. Co., 133 Wis. 426, 113 N.W. 655; Lambert v. Jones, 91 Mo.App. 288.)

Such causes of action are not assignable.

"As a general rule, in the absence of a statute providing otherwise, causes of action ex contractu survive while causes ex delicto do not." (Kloepfer v. Forch, 32 Idaho 415, 184 P. 477; Hambly v. Trott, 1 Cowp. 371, 98 K. B. Reprint 1136; United States v. Daniel's Executors, 6 How. (U. S.) 11, 12 L.Ed. 323; Lamphere v. Hall, 26 How. (N. Y.) Prac. 509; 2 R. C. L. 611; Farwell Co. v. Wolf, 96 Wis. 10, 65 Am. St. 22, 70 N.W. 289, 71 N.W. 109.)

The complaint is...