Redford v. Weller
| Decision Date | 10 May 1911 |
| Citation | 131 N.W. 296,27 S.D. 334 |
| Parties | REDFORD et al. v. WELLER. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Davison County; Frank B. Smith, Judge.
Action by Frank Redford and another against Frank Weller. Judgment for plaintiffs, and defendant appeals. Affirmed.
T. J Spangler, for appellant.
A. E Hitchcock, for respondents.
This is an appeal by the plaintiffs from a judgment entered in favor of the defendant upon the verdict of the jury. This action was instituted by plaintiffs to recover of the defendant the sum of $289.71, with interest from the 9th day of September 1907, together with the costs of the action. The answer was a general denial. The jury found a verdict in favor of the plaintiffs for $285, upon which verdict judgment was duly entered.
At the commencement of the trial, the defendant objected to the admission of evidence under the complaint, for the reason that the same did not state facts sufficient to constitute a cause of action, which objection was by the court overruled, and to which ruling the defendant excepted. At the close of plaintiffs' evidence, the defendant moved the court to direct a verdict in favor of the defendant, which motion was denied, and the defendant excepted. At the conclusion of all the evidence, this motion was renewed and again denied by the court, to which ruling the defendant excepted, and thereupon the court charged the jury, and to portions of which charge the defendant excepted.
Three questions, therefore, are presented by this appeal for our determination, viz.: (1) Does the complaint state facts sufficient to constitute a cause of action? (2) Was the evidence introduced on the trial sufficient to sustain plaintiffs' cause of action, and did the court err in overruling defendant's motion for the direction of a verdict in his favor? (3) Were the instructions of the court excepted to erroneous?
The complaint states, in substance, that on or about the 9th day of September, 1907, the defendant received, through the Mitchell National Bank of Mitchell, S. D., from the plaintiffs, the sum of $289.71; that said sum was received by said defendant under the following circumstances, to wit, that on or about the 3d day of April, 1906, the plaintiffs were in possession of certain described lots in the city of Mitchell, under a contract for the purchase of the same from one Purdy; that at said date there was a balance due upon the purchase of said real estate the sum of $670, which the plaintiffs desired to pay; that the plaintiffs and the defendant entered into an oral agreement by which the defendant advanced the said sum of $670 for the balance due upon said purchase price, and as security therefor the said defendant took the title of said premises to himself from the said Purdy, the title being taken by the said defendant solely for the purpose of securing him the payment of the said sum of $670; that in addition to the said sum of $670, the plaintiffs were indebted to the defendant upon certain notes and chattel mortgages in divers sums; that on or about the 9th day of September, 1907, the plaintiffs sold the premises above described to other parties and desired to obtain a deed therefor from said defendant; that the money from the sale of said premises was deposited in the Mitchell National Bank, to be paid to the plaintiffs when the deed was given to the purchaser; that at said time, before said defendant would make a deed for said premises, he extorted from the plaintiff Frank N. Redford consent to pay to him out of the said purchase money the sum of $989.05, said sum being $289.71 in excess of what was lawfully due him at said time; that the said excessive sum of $289.71 consisted of usurious interest and bonuses on account of moneys advanced by the defendant to the plaintiffs; that on said date of September 9, 1907, the plaintiffs were in financial distress and greatly in need of money, and by reason thereof the defendant took unfair advantage of plaintiffs' necessities and insisted upon the payment of said money before he would make said deed; that by reason thereof said money was obtained by defendant from the plaintiffs by undue influence; that the consent of said plaintiffs to the payment of said money would not have been given, had the plaintiffs not been in such sore financial distress, and not able to insist upon their legal rights against gross oppression of the defendant in demanding such sum over and above the amount that was due him; and that, prior to the commencement of this action, the plaintiffs demanded payment of said sum from the defendant, but that he has refused to pay the same, or any part thereof.
It is contended by the respondents that the complaint states a good cause of action under the provisions of section 1196 of the Civil Code, which provides as follows: ; and section 1204, which provides:
These two sections of our Code are verbatim copies of sections 752 and 760 of the proposed Civil Code for the state of New York, and the learned Code Commissioners of New York, in their note to the third subdivision of section 760 above quoted, refer, among numerous other cases, to Breck v. Cole, 4 Sandf. p. 88, as a basis for that subdivision.
It is disclosed by an examination of that case, that one Philo Cole, becoming embarrassed in his business affairs, entered into a composition with his creditors, and that all of the creditors, except the plaintiff, accepted the promissory notes of Barnum Cole, a brother of Philo Cole, to pay them 40 cents on the dollar of the amount of their respective debts in full release and discharge of their said debts respectively, and the said Barnum Cole testified that, when he called upon the plaintiff to procure his signature to the composition deed, the plaintiff said he would execute the deed, provided the defendant, Philo Cole, would give him, in addition to the composition note of the witness, his own note for $103.86, which the defendant agreed to do, and thereupon the plaintiff executed the composition deed. And this action was to recover of the defendant, ...
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