Purcell v. International Harvester Co. of America
| Decision Date | 29 August 1916 |
| Docket Number | 3945. [*] |
| Citation | 159 N.W. 47,37 S.D. 517 |
| Parties | PURCELL v. INTERNATIONAL HARVESTER CO. OF AMERICA. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Codington County; C. G. Sherwood, Judge.
Suit by Sam Purcell against the International Harvester Company of America, wherein defendant pleaded a counterclaim. Judgment for defendant, and plaintiff appeals. Affirmed.
McFarland & Johnson, of Watertown, for appellant.
Hanten & Hanten and P. F. Gault, all of Watertown, for respondent.
This action was brought on the equity side of the court for the cancellation of two certain promissory notes for $900 each given by appellant to respondent as the purchase price of certain farm machinery sold and delivered by respondent to appellant under a certain contract of warranty. Plaintiff the appellant, alleged a breach of said warranty and fraudulent representations as to the quality of said machinery as a ground for the rescission of said sale and cancellation of said notes. Defendant admitted the warranty but denied any breach thereof, and pleaded a counterclaim for the recovery of $900 and interest upon one of said notes. The cause was noticed for trial by plaintiff as a jury cause and by defendant as an equity cause triable by the court without a jury. At the beginning of the trial defendant moved that the cause be tried by the court without a jury, on the ground that the cause of action pleaded and the relief demanded by plaintiff is cognizable by a court of equity. This motion was granted, and appellant duly excepted to the ruling, and the cause was tried by the court without a jury. Findings and judgment were in favor of defendant, and plaintiff appeals.
The first contention of appellant is that the court erred in ordering the cause to be tried as an equity case before the court without a jury. It is appellant's contention that the complaint alleged a cause of action on the law side of the court. As pointed out by this court in Sweeney v. United Underwriter's Co., 25 S.D. 1, 124 N.W. 1107, there is a substantial distinction between an action based upon a past rescission of a contract and an action for rescission of a contract. A cause of action for the recovery of property based on a completed rescission of a contract is generally a law action triable by a jury, while an action for rescission, that is, one which seeks the establishment of a rescission as a result of the action, is on the chancery side of the court. An action for rescission is the same as an action for cancellation, which might be properly termed an action for rescission and cancellation. There are some statements of fact in the complaint which treat the contract in question as having been wholly rescinded prior to the commencement of the action; but such statements are in conflict and inconsistent with other portions of the complaint. The appellant by his demand for relief and other allegations of fact has placed on this complaint the construction that it is a complaint in equity for the rescission and cancellation of the contract. The trial court was therefore not in error in holding the complaint to state a cause of action on the equity or chancery side of the court.
The counterclaim of defendant alleged another cause of action in which, if issues were raised thereon, both parties were entitled to a jury trial as a matter of right. The trial court might have properly ordered the issues arising on the complaint to have been tried by the court, and the issues, if any, arising under the counterclaim and reply thereto to have been tried by a jury. Leisch v. Baer, 24 S.D. 184, 123 N.W. 719. Neither party moved the court for such a separation of the issues, and no error can therefore be based on the proposition that the jury and chancery issues were not separated.
The reply of plaintiff admitted all the allegations of the counterclaim, excepting that it denied there was anything owing to respondent on said note. This was merely the denial of a conclusion of law. The trial court found that there was no fraud on the part of respondent in the making of said contract. The evidence on which this finding was based is not contained in the record, and counsel for appellant on argument conceded that the question of fraud raised by the reply to the counterclaim is not in issue on this appeal. If there was no fraud in the procuring of said contract and notes, it clearly appears that if appellant was not...
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