McLaughlin v. Wheeler

• Decision Date: 30 January 1891
• Citation: 1 S.D. 497,47 N.W. 816
• Parties: McLAUGHLIN et al. Plaintiffs/Respondents, v. WHEELER et al. Defendants/Appellants.
• Court: South Dakota Supreme Court

1 S.D. 497, 47 N.W. 816 (1891)

McLAUGHLIN et al.

Plaintiffs/Respondents,

v.WHEELER et al.

Defendants/Appellants.

South Dakota Supreme Court

Appeal from District Court Lawrence County, SD

Hon. Charles M. Thomas, Judge

Affirmed

W. E. Church, VanCise & Wilson

Attorneys for appellants.

McLaughlin & Steele

Attorneys for respondent.

Argued April 26, 1890. Opinion filed Jan. 30, 1891.

KELLAM, J.

At the times referred to in the proceedings in this action, the plaintiffs, now respondents, composed a firm of practicing attorneys in the city of Deadwood, and the defendants, appellants here, were partners in business in the city of Chicago. The complaint states two distinct causes of action against defendants—the first for services as attorneys at law, and the second for services as agents of defendants in making sale of and finding a purchaser for certain mining and other property of defendants in the vicinity of the said city of Deadwood; both of which causes of action were denied by defendants. The case was tried before a jury.

At the close of the testimony defendants moved the court to direct a verdict in their favor on the second cause of action, which was refused. The jury found for the plaintiffs on both causes of action, and a motion for a new trial was denied. Prior to the commencement of the action, a warrant of attachment against the property of the defendants was issued on the ground of the non-residence of defendants. Afterwards defendants moved to discharge this attachment, on the ground that personal service of the summons was not made, nor publication thereof commenced, within thirty days after the issuing of the summons, as required by Section 4993, Comp. Laws, which motion was overruled. The case comes to this court upon appeal from the judgment the order denying a new trial, and the order refusing to discharge the attachment. Defendants, however, make no contention as to the first cause of action stated in the complaint.

We will first consider the questions involved in the motion to discharge the attachment. Prior to this motion defendants had given a satisfactory undertaking for the payment to the plaintiffs of any judgment that might be recovered against them in the action, and. the attachment had been discharged upon such undertaking, as provided in Sections 5009, 5010, Comp. Laws; and respondents claim that appellants could not thereafter maintain a motion to discharge, for the reasons that, by giving such undertaking, appellants had fully recognized the validity of the attachment; and that, having already obtained a discharge of the attachment under said Sections 5009 and 5010, there was no longer any attachment to be discharged.

Upon this precise question the highest courts of different states, under statutes substantially like ours, have reached opposite conclusions; and, as either view is thus supported, it will probably be as satisfactory simply to recognize the fact of the conflict, without attempting to array and compare authorities, and, as the question is an open one in this state, now adopt the rule of practice in respect thereto which seems to us most logical and reasonable under the different provisions of the attachment law. Section 5009 provides that "whenever the defendant shall have appeared in such action he may apply to the clerk who issued the attachment, or to the court for the discharge of the same," etc.; and the succeeding section provides that such discharge may be accomplished by giving an under-taking, as was done in this case. Does this proceeding actually extinguish the attachment, or simply release the property from its grasp? The next section (5011) provides that, on motion of defendant, the attachment may be discharged upon the merits, and prescribes the practice. The effect of giving the undertaking as in Section 5010, and a successful motion by defendant as in Section 5011, is described in precisely the same language; and only under the coercion of a strong necessity would this court feel justified in saying that in one section the expression "discharge of the attachment" meant simply a release of the property attached, and in the next section the same expression meant the destruction of the warrant. No such necessity is apparent. If defendant only seeks a release of his property, he may accomplish that under Section 4997. If he desires the discharge of the attachment, he may have his election to proceed under Sections 5009 and 5010, and give an undertaking, or make his application upon affidavits under Section 5011; but, having procured its discharge by the first method, there is nothing left to proceed against by motion. This identical question has recently been before the supreme court of North Dakota, under the same statute inherited from the Territory of Dakota, and, after elaborate and instructive discussion, the same conclusion is announced. Fox v. Mackenzie, ante, 386. The same effect is given to similar statutory provisions in Endress v. Ent, 18 Kan. 236; Dierolf v. Winterfield, 24 Wis. 143; Austin v. Burgett, 10 Iowa 302; Ferguson v. Glidewell, 48 Ark. 195, 2 S.W. 711. These views necessitate the conclusion that the court below ought not to have entertained the motion to discharge, and so much of the order appealed from as provides "that said writ of attachment stand and continue in full force" is reversed, for the reason, as indicated, that the same had already been discharged by giving the Undertaking.

The second cause of action, the only one involved in this contention, is an alleged indebtedness of defendants to plaintiffs "for the work, labor, and services of the said plaintiffs performed and bestowed as the agents of and for the said defendants, and on their retainer, in making sale of and finding a purchaser for certain mining and other property of said defendants, situate," etc. The answer of defendants was subjected to some criticism by appellants, and an effort was made to limit and qualify the issue apparently raised by it; but we are disposed to treat it as a general denial of the cause of action. The complaint alleges that defendants "are indebted to the said plaintiffs for the work, labor, and services," etc.; and the answer denies "that they, or either of them, are indebted to the said plaintiffs, or either of them, for work, labor, and services," etc. If plaintiffs had pleaded the facts out of which the indebtedness resulted as a conclusion, a denial of such conclusion would have been insufficient to make an issue, but, having alleged the indebtedness as a fact, we think the defendants might so treat and so deny it in their answer. The substantial allegation of the complaint is that "defendants are indebted," and, if the answer had been in terms a general denial, it would have simply denied the indebtedness, and tendered the same issue as this answer does. Morrow v. Cougan, 3 Abb. Pr. 328; Quin v. Lloyd, 41 N.Y. 349.

The assignments of error are very numerous, but we think they may be all fairly considered in the discussion of two or three general questions into which the entire contention naturally divides itself. Does the evidence show any employment of plaintiffs by defendants of the nature indicated in the complaint? If so, what was plaintiff's authority under such employment, and did they pursue such employment and execute such authority in a manner to entitle them to the compensation which was to be the reward therefor, if such reward was agreed upon?

It appears that in 1884 the defendants had become the owners, conjointly with one Nathan Hattenbach, of these mining properties out of the alleged contract for the sale of which this controversy grows—except the smelter, which was erected later; that by subsequent deeds of conveyance, absolute upon their face, they had become and were, in 1886, the apparent legal owners of all of said properties included in the alleged contract for sale, subject, as is claimed by defendants, to an equitable interest of said Hattenbach, fully known to and understood by said plaintiffs, prior to and at the time of the making of the alleged contract; that as early as in December, 1884, the parties had several conversations in reference to a sale of these properties by plaintiffs for defendants, but as to the tenor of these conversations, and what agreement, if any, was reached, the testimony is conflicting. Nothing tangible was effected towards making a sale until the spring of 1886. at which time, April, 1886, plaintiffs claim they found a purchaser, and negotiated a sale upon terms authorized by defendants.

The first discussion of counsel is as to the necessity for written authority to an agent to contract for the sale of real estate, and several sections of the Compiled Laws (3245, 3544, 3617, and 3971) are referred to by defendants' counsel as rendering incompetent all testimony tending to show an oral authorization. These several sections provide that real estate can only be transferred—if by act of the parties—by an instrument in writing, subscribed by the grantor, or by his agent thereunto authorized by writing; that an agreement for the sale of real estate, if made by an agent, is invalid unless the agent's authority be in writing, and subscribed by his principal; that no agreement; for the sale of real estate is valid unless some note or memorandum thereof be in writing, subscribed by the party to be charged, or by his agent thereunto authorized in writing, and that oral authorization of an agent is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an in strument in writing. If defendants' claims were confessedly correct, that the effect of these sections is to establish a rule of evidence not only between the contracting parties in such transaction, but between principal and agent as well, we doubt if it would be available to them upon this record; for no objection appears to any part of the evidence tending to...