Power v. Williams
| Decision Date | 04 August 1925 |
| Docket Number | 4912 |
| Citation | 205 N.W. 9,53 N.D. 54 |
| Court | North Dakota Supreme Court |
Appeal from District Court of Cass County, North Dakota, Cole, J.
Reversed and new trial ordered.
New trial ordered.
Shure & Murphy, for appellant.
It is the defendant's contention that the words "trial by jury," as used in such constitutional provision meant a trial by a jury as known to the common law in the Territory of Dakota at the time of its admission to the Union as a state. Berry v. Truax, 13 N.D. 137; Smith v Kunert, 17 N.D. 120; Grigsby v. Larson, 124 N.W. 856; McKenny v. McKenzie, 127 N.W. 597; Con. Min. Co. v. Struthers, 111 P. 155; State ex rel. Jackson v. Kenner, 60 P. 589; People v Martin, 21 A.L.R. 1403, 205 P. 121; Re Mana, 192 P. 986; Cassidy v. Sullivan, 28 P. 234; Ex parte Wong, 39 P 627; Bathwell v. R. Co. 215 Mass. 467, L.R.A.1917F 167, 102 N.E. 665, Ann. Cas. 1914D, 275; Moot v. Moot, 214 N.Y. 204, 108 N.E. 424.
Section I of an act of Congress, approved April 7, 1874, being § 34 of the Organic Law, Compiled Laws 1887, provided that no party has been or shall be deprived of the right of trial by jury in cases cognizable at common law. As construing these sections, see American Pub. Co. v. Fisher, 166 U.S. 464, 41 L. ed. 1079, 17 S.Ct. 618; Walker v. N. M. R. Co. 165 U.S. 593, 41 L. ed. 837.
Due process of law in a state is regulated by the law of the state. Walker v. Sauvinet, 92 U.S. 90, 23 L. ed. 678; Maxwell v. Dowe, 176 U.S. 581, 44 L. ed. 597.
Whatever else may be asserted about the definition of the term "due process of law," all authorities agree that it inhibits the taking of one man's property and giving it to another contrary to settled usages and modes of procedure. Ocha v. Hernandez, 230 U.S. 139, 57 L. ed. 1437.
The constitutional provision that the right of trial by jury shall remain inviolate means that it shall not be destroyed or annulled by legislation nor so hampered or restricted as to make the provisions a nullity. 16 R. C. L. 196; Grim v. Norris, 19 Cal. 140, 79 Am. Dec. 206.
Barnett & Richardson and Lyman N. Miller, for respondent.
The right of trial by jury has been constantly modified, and changed, during its entire history. In Canada, still under the common law, a unanimous verdict is no longer necessary. Robertson v. McMeans, 1 Manitoba L. R. 348.
Plaintiff brings this action to recover the balance of the purchase price of some land alleged to have been sold to the defendant. She alleges, in the complaint, that she sold the land to defendant, on Dec. 24, 1922, for $ 12,000; that the defendant agreed to pay for the property by assuming two encumbrances against it of $ 4,000, each, and interest, by surrendering a promissory note executed by her in the sum of $ 1,092, and by paying her $ 2,168, in cash. It is then alleged that "plaintiff has transferred the . . . land, at the request of the defendant, to the Arthur Mercantile Company;" and that he has failed and refused to deliver the note and pay the cash. She asks judgment accordingly.
Defendant answered, alleging that the land was in fact sold to the Arthur Mercantile Company and for no consideration other than the assumption of the encumbrances and the return of a note executed to the Pingree State Bank in the sum of $ 1,092.24, and interest amounting to $ 95.04. Otherwise, the answer is a general denial.
The trial resulted in a verdict for plaintiff for $ 1,839.47, and costs. Two jurors refused to concur. Defendant appeals from the judgment and from an order denying a motion for a new trial.
Aside from the attack on the constitutionality of the statute, chap. 333, Sess. Laws, 1923, authorizing ten jurors to return a verdict if, after a deliberation of twelve hours, the twelve cannot agree, the defendant assigns errors based upon the instructions and upon rulings in admitting or excluding evidence. It is also contended that the undisputed testimony shows that a certain option contract was abandoned and that in fact the land was sold to the company and not to the defendant.
On January 17, 1922, plaintiff and defendant entered into an option agreement, whereby defendant had the right to buy or sell plaintiff's land for $ 12,000, payment to be made in the manner described in the complaint, with the exception that the return of the note therein referred to was not stipulated. It is conceded that defendant was under no obligation to buy--that the contract was an option agreement. No sale resulted and nothing appears to have been done until Dec. 13, 1922, when plaintiff and defendant met in the store operated by the Arthur Mercantile Company, and in which the defendant was the principal stockholder. At this point the controversy as to the facts really begins. Plaintiff's version of what happened in the store and afterwards in the bank, to which the parties repaired, is that defendant agreed "to take over the place," and that he said nothing about any change in the terms of the option agreement until after she had signed the deed. She says she did not know that the grantee in the deed was the Mercantile company. Plaintiff says that the purchase price, or consideration, stipulated in the option agreement, was never changed and that she "didn't agree to any other consideration"--that the "consideration was to be twelve thousand dollars, less the mortgages and the interest."
The defendant testified that the consideration agreed to be paid by the grantee in the deed was the assumption of the mortgages and the return of the note; that there was no agreement to pay any cash. He denies the plaintiff's testimony in this respect and is corroborated by witnesses who say they heard the conversation, or that the terms were stated to them by the parties. There is, therefore, presented a conflict in the testimony on the question of the consideration which the verdict resolves in favor of the plaintiff.
Error is assigned in the ruling of the court in admitting Ex. 1, the option agreement, and instructions with reference thereto. It is the plaintiff's contention that this instrument evidenced the terms of the sale, with the exception of the return of the note, and that it was admissible for the purpose of showing the consideration. The testimony of the plaintiff is fairly susceptible to the construction that when the sale took place in December, 1922, it was upon the consideration stated in the option. There was no error committed in admitting the exhibit. The instructions upon this branch of the case are entirely fair to the defendant and technically correct. No useful purpose would be served in setting them forth in detail. The court told the jury, in this connection, that Ex. 1 was evidence in the case, to be considered with other evidence in making up the verdict; that if the preponderance of the evidence was to the effect that the sale was made on the terms stated in the option contract and payment had not been made accordingly, the verdict should be for plaintiff if, on the contrary, they were satisfied that the sale was made on other and different "terms, conditions and price" the verdict must be for the defendant. Defendant's assignments on this point are without merit. There is no such variance between the pleadings and the proof as defendant claims. Obviously, plaintiff sues on the contract of sale; so far as it was not modified by the parties, the option agreement was competent and proper evidence of the terms on which the sale was made.
Defendant made some requests for instructions, which were refused. The following is a fair specimen:
"Where a party to an action makes solemn admissions against his interest in the pleadings, they should be treated as admitted facts, and he will not be heard to question the correctness thereof, and each party in an action is, in that case, conclusively bound by those admissions which they expressly make in the pleadings."
The court charged as follows:
The plaintiff testified that she did not know that the Arthur Mercantile Company was the grantee in the instrument; in her complaint she alleged that the name of this concern as grantee was inserted in the deed at the request of defendant Williams. The complaint was verified by her counsel. It will be recalled that the option contract obligated the plaintiff to convey the land to the defendant "or any person or persons he may name." The defendant introduced the complaint for the purpose of showing that plaintiff had therein made an admission on this point contrary to her testimony.
It has been held in this state that an admission in a pleading otherwise admissible, is competent evidence as against the pleader, of the fact admitted, in a case other than that in which it was filed, and in behalf of the pleader's adversary in the former action, where it appears that the admission is incorporated in the pleading with the knowledge and consent of the party. Horton v. Emerson, 30 N.D. 258, 274, 152 N.W. 529; and see Union Nat. Bank v. Western Bldg. Co. 44 N.D. 336, 341, 175 N.W. 628. The alleged admission is relied on as evidence, and not as a matter of pleading which excuses the defendant from offering...
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