Martin v. Dowd

• Citation: 8 Idaho 453,69 P. 276
• Parties: MARTIN v. DOWD
• Decision Date: 03 June 1902
• Court: Idaho Supreme Court

69 P. 276

8 Idaho 453

MARTIN v. DOWD

Supreme Court of Idaho

June 3, 1902

ISSUES-CONTRACTS.-Where the issues made by the pleadings are matters of fact, whether the contract was a loan or a sale, the cause was properly submitted to a jury.

CONFLICT OF EVIDENCE-VERDICT OF JURY.-Where there is a substantial conflict in the evidence, a judgment entered on the verdict of a jury will not be reversed.

(Syllabus by the court.)

APPEAL from the District Court, Nez Perces County.

Verdict sustained. Costs awarded to respondent.

Charles L. McDonald, for Appellants.

The instrument by which said conveyance was made was set out in full by the defendants in their answer, which showed said instrument to be a deed from the plaintiff to defendants for said property, absolute on its face, and as plaintiff failed to file the affidavit denying the execution of said instrument as provided for in section 4201, Revised Statutes of Idaho he admitted the genuineness and due execution of the said instrument he is precluded further from showing anything contrary to the facts contained in said instrument except that the same was procured through fraud or misrepresentation. (Cox v. Northwestern Stage Co., 1 Idaho 376.) "A parol agreement by the grantee of an absolute conveyance to dispose of the property and return the proceeds to the grantor after the payment of the grantee's debts creates an express trust." (Benson v. Dempster, 183 Ill. 297, 55 N.E. 651; Fetter on Equity, 164; Bisham's Equity, sec. 49.) "The nature of the cause of action must be determined from the substantive facts therein pleaded, and not from the prayer for relief nor from the name given to the action by the pleader." (Martin v. Martin 18 Ind. 227, 20 N.E. 767.) Showing, as we deem we have, that the case at bar is an equitable action and should have been tried by the court and without a jury unless the jury acted in an advisory manner merely. (Hayne on New Trial and Appeal, sec. 287; Hulley v. Chedic, 22 Nev. 127, 58 Am. St. Rep. 729; Ramsey v. Hart, 1 Idaho 423, 36 P. 783; Sullivan v. Royer, 72 Cal. 248, 13 P. 655.) "The presumption of law, independent of proof, is that the instrument is what on its face it purports to be--an absolute conveyance--and that this presumption should be allowed to prevail unless the evidence offered to show that the deed was in fact intended as a mortgage, is entirely plain and convincing." (Mahoney v. Bostwick, 96 Cal. 53, 31 Am. St. Rep 175, 30 P. 1020; Heley v. Hotaling 41 Cal. 22; Cadman v. Peter, 118 U.S. 73, 6 S.Ct. 957; Coyle v. Davis, 116 U.S. 108, 6 S.Ct. 314; Whitsett v Kershow, 4 Colo. 419; 3 Pomeroy's Equity Jurisprudence, sec. 1196; Sheehan v. Sullivan, 126 Cal. 189, 58 P. 543.) "Where there is no substantial conflict in the evidence, and it is clearly against the verdict, the judgment will be reversed." (Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 66 P. 933.)

Daniel Needham, for Respondent.

Appellant contends that they were to pay to respondent the sum of $ 500 as full consideration for the deed, and respondent contends that appellants must pay him $ 750, as they sold the mine for $ 3,000. Here is a dispute about the consideration of the deed. The deed recites that $ 500 was the consideration, and the respondent and the jury say that $ 750 was the true consideration. The statement of the deed as to the consideration is in the nature of a recital, and the true consideration may be shown by oral testimony. In the case of Benson v. Dempster, 183 Ill. 297, 55 N.E. 651, cited by appellants, there was an agreement to accept an absolute deed and to pay from the proceeds of the sale of the real estate the grantor's debts, and thereafter to pay balance remaining to grantor. This is the creation of a trust. But that case is not in point. Here the appellants agree to pay to respondent for his interest in the mine one-fourth of the amount they sell the entire mine for. The substantive facts stated in the complaint, therefore, show conclusively that the action is at the common law.

STOCKSLAGER J. Sullivan, J., concurs. QUARLES, C. J., Dissenting.

OPINION

STOCKSLAGER, J.

This is an appeal from a judgment of the district court of Nez Perces county; also from an order overruling a motion for a new trial. The complaint alleges that on the twentieth day of May, 1897, plaintiff, defendants, and one Gust Erickson located a certain mining claim in the name of D. W. Martin, Gust Erickson, Matt Dowd, and John Gaffney; that thereafter, to wit, in the month of October, 1900, plaintiff borrowed from defendant Matt Dowd $ 100, and agreed to, and did, convey one-fourth interest in said mining claim to said Matt Dowd and John Gaffney for the purpose of securing said loan of $ 100, and for the further purpose that they, the said Dowd and Gaffney, might negotiate a sale of said mining claim, and on the sale thereof retain said $ 100 and all interest thereon, and pay to this plaintiff one-fourth of any and all purchase money that they might receive from said sale; that on the fifth day of March, 1900, said Dowd and Gaffney negotiated a sale of said mining claim with one George Runkle, and that said Dowd and Gaffney, together with Gust Erickson, for the sum of $ 3,000, of which $ 500 was paid on the said fifth day of March, 1900, and the balance, of $ 2,500, was paid in the month of April, 1900, sold, assigned, transferred, set over, and deeded to the said Runkle the said mining claim, together with all right, title, interest, and estate of each and every of said locators and of plaintiff in and to the same; that said Dowd and Gaffney have paid to said Erickson his one-fourth, to wit, $ 750; that they have paid plaintiff about March 5, 1900, $ 500, and have neglected and refused to pay plaintiff the balance due him, to wit, $ 250, though often requested so to do. The answer admits the location of the mining claim by the parties as alleged in the complaint, and all the allegations of the complaint except such as are denied, to wit: Deny that they paid to the plaintiff on or about the fifth day of March, 1900, $ 500, or any other sum greater than the sum of $ 400. Deny that they have neglected or refused to pay to plaintiff the balance due him, to wit, $ 250, or any other sum, or that any balance is due him. Affirmatively allege: That on the ninth day of October, 1899, plaintiff prepared and offered for sale to defendants his undivided one-fourth interest in and to said mining claim for the sum of $ 500, payments to be made as follows: $ 100 cash at the time of transfer of property, and balance, $ 400, to be paid whenever demanded by plaintiff. To this proposition defendants acceded, whereupon plaintiff made, executed, and delivered to them his deed to his undivided interest in and to the said property, defendants at said time paying to him the sum of $ 100, as agreed, as a part of the purchase price of said property. That thereafter, to wit, on or about the sixth day of March, defendants placed to the credit of plaintiff, in the First National Bank of Lewiston, the further sum of $ 400, as balance due on said purchase price, which said amount plaintiff received and accepted as the total amount due him for said interest as aforesaid. That ever since said time, and until the time of the transfer of the whole of said mining claim, defendants were the owners in fee of said interest formerly owned by plaintiff. Upon these issues a jury was impaneled, and a trial had, which resulted in a verdict for the plaintiff for the sum of $ 224, and upon which a judgment was entered in favor of the plaintiff for said sum.

The first assignment of error is as follows: "The court erred in ordering a jury to be sworn and impaneled, over defendants' objection, to try the above cause, and in having the same tried by a jury." In support of this assignment of error our attention is called to Cox v. North-Western Stage Co., 1 Idaho 376. The syllabus says: "A failure by plaintiff to deny by affidavit the genuineness and due execution of an instrument in writing set forth in the answer as the foundation of the defense does not preclude the plaintiff from showing on the trial that it was procured by fraud or misrepresentation." There is no controversy about the character of the instrument. It is alleged by plaintiff that he executed the deed to his interest in the mining claim to defendant as security for a loan, whilst defendants allege that the deed was intended to absolutely convey the property. The only question being one of fact, it was properly referred to a jury.

The second assignment follows: "The court erred in ruling, over defendants' objection, that this case is a proper case for a jury, and that it should be tried by a jury." The same ruling applies to this assignment, and we do not think it was error to submit the issues to a jury.

Assignment 3: "The court erred in overruling defendants' objection to the following question asked witness Martin 'You heard me read the complaint wherein you allege you made a deed in October, 1899? State what passed between you and the defendants, Matt Dowd and John Gaffney, if anything, when you made the deed.'" Counsel for appellants objected, to wit: "We desire to object to that question on the ground that it is incompetent, immaterial, and irrelevant; that the plaintiff is attempting to vary the terms of a written contract or agreement by parol evidence, which in this character of a case is inadmissible. On the further ground that the plaintiff, by failing to comply with section 4201 of the Revised Statutes of Idaho which requires the filing of an affidavit where a written instrument is set up--by failing to do this he has admitted the execution of the deed, and that by that admission he not only admitted the execution and...