Schmidt v. Beiseker
| Decision Date | 29 November 1905 |
| Citation | 105 N.W. 1102,14 N.D. 587 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Wells county; Burke, J.
Action by John L. Schmidt against Arthur N. Beiseker. Judgment for defendant and plaintiff appeals.
Reversed.
Reversed and remanded.
Hanchett & Wartner, for appellant.
Where a contract relating to real estate and required by the statute of frauds to be in writing is pleaded with no averment as to whether it is in writing or not, a demurrer on that ground will be overruled, as it is presumed to be in writing. Lewin v. Stewart, 10 How. Pr. 509; Cranston v Smith, 6 R. I. 231; Sanborn v. Rodgers, 33 F 851; Brennan v. Ford et al., 46 Cal. 8; Tucker v. Edwards,, 3 P. 233; Hayt v. Hunt, 15 P. 410; Mayger v. Cruse et al., 6 P. 333; Groce v Jenkins et al., 5 S.E. 352; Day v. Dalziel, 32 S.W. 377; Strouss v. Elting, 110 Ala. 132; New York & T. Land Co. v. Dooley, 77 S.W. 1030; Taliefero v. Smiley, 37 S.E. 800; Bradford Inv. Co. v. Joost et al., 48 P. 1083; Stearns v. Lake Shore & M. S. Ry. Co., 71 N.W. 148; Gale v. Harp, 43 S.W. 144; Lupean v. Brainerd, 46 N.Y.S. 1044.
An agent should follow faithfully his principal's directions, keep him informed of his transactions, act in the utmost good faith, and not speculate himself in the subject matter of the agency to the detriment of his principal, or he is liable in damages for any loss sustained by his principal. 1 Am. & Eng. Enc. Law (2d Ed.) 1058, 1069, 1071; Commercial Bank v. Red River Valley Nat'l Bank, 8 N.D. 383, 79 N.W. 859.
Where defendant pleads over and goes to trial, the rule of fair and reasonable intendment applied, and all objections as to form and slight omissions are waived. Andrews' Stephens' Pleading, sections 141-142; Bauman v. Bean, 23 N.W. 451; Garrett v. Tratter, 65 N.C. 430; Marvin v. Weider, 48 N.W. 825.
A defect in the complaint curable by amendment is waived by going to trial without objection. Becknell v. Spier, 27 N.Y.S. 386; Strait v. City of Eureka, 96 N.W. 695.
The practice of answering and then objecting to evidence on the ground that the complaint does not state a cause of action is disapproved in this state. Pine Tree Lumber Co. v. City of Fargo, 12 N.D. 360, 96 N.W. 357; Schweinber v. Gt. Western Elevator Co., 9 N.D. 113, 81 N.W. 35; Chilson v. Bank of Fairmont, 9 N.D. 96, 81 N.W. 33.
Besessen & Berry and Burke & Middaugh, for respondent.
No action will lie for damages for violation of a parol agreement to convey. Warvell on Vendors, 984.
If a party asserting a resulting trust made no payment he cannot show by parol proof that the purchase was made for him or on his account. Botsford v. Burr, 2 Johns Ch. 405; Steere v. Steere et al., 5 Johns Ch. 1; Pinnock v. Clough, 16 Vern. 500; Howland v. Blake, 97 U.S. 624, 24 L.Ed. 1027; Levy v. Brush, 45 N.Y. 589; Richardson v. Johnsen, 41 Wis. 100; Payne v. Patterson, 77 Pa.St. 134; Bander v. Sugden, 5 Barb. 63; Lathrop v. Hoyt, 7 Barb. 59; Story Eq. Jur,. section 501a; Parsons v. Phelan, 134 Mass. 105; Gettman v. Gettman, 1 Barb. Ch. 499; Davis v. Wetherall, 11 Allen 19.
This is an action for the recovery of damages for the breach of a contract of agency. Plaintiff employed the defendant to appear for him at the United States land office at Devils Lake and purchase for him a fractional tract of land advertised to be there sold to the highest bidder, under a provision of the United States statutes. The complaint alleges that plaintiff and defendant entered into a contract under which defendant was to appear at said office, bid in and purchase the described tract, pay for it with defendant's money, and that plaintiff was to repay defendant for the money paid for the land as soon as he should ascertain the sum that defendant had paid for said land, and plaintiff was also to pay defendant the sum of $ 75 as his compensation for his services at the same time; that defendant appeared at said land office and bid in and purchased said land for himself in his own name, contrary to his instructions and contract; and procured the evidence of the title to said tract to be issued in his own name, and thereafter sold said land to another person, and thereafter refused to convey the said land to the plaintiff upon being requested so to do; that the value of said land is the sum of $ 1,000, for which sum plaintiff demands judgment, less $ 145, the sum paid by the defendant for said land. The defendant answered by a general denial. After a jury was impaneled to try the case, the defendant objected to the introduction of any evidence under the complaint, for the reason that the same does not state facts sufficient to constitute a cause of action; and for that reason defendant also moved for judgment on the pleadings at that time. The court sustained this objection and the motion, and judgment was entered dismissing the action. The point on which this ruling was based is that the contract set forth in the complaint is one that relates to a conveyance of an interest in real estate, and is therefore invalid under the provisions of the statute of frauds. Other alleged defects are urged against the complaint, to the effect that the contract pleaded is so indefinite that an action for damages cannot be predicated thereon. These alleged defects are not such as to render the cause of action defective in matters of substance. Plaintiff asked to have the complaint amended after the objection to any evidence being admitted was made, and these amendments should have been allowed. In ruling on such objections the complaint will be more liberally construed than when it is attacked by demurrer. Waldner v. Bank (N.D.) 13 N.D. 604, 102 N.W. 169.
The question which the defendant principally relies on, and devotes nearly the whole of his written argument to, is that the contract was not in writing, and therefore invalid. The gist of the contract relied on and pleaded is that defendant and plaintiff contracted that defendant was personally to appear at the land office or procure another to there appear for him and purchase the land for the plaintiff, and in plaintiff's name to receive the receiver's receipt from the local land office. Defendant agreed to pay the price at which the land was bought from the United States. Plaintiff agreed to repay said purchase price to the defendant immediately, and as soon as he ascertained the amount of the same, and further agreed to pay to the defendant the sum of $ 75 for his compensation. Does this contract relate to a sale of, or to an interest in, real estate, and render the contract invalid as being "an agreement for a sale of real property or of an interest therein," under section 3960, Rev. Codes 1899? We conclude that the contract was simply one of agency or employment and cannot be construed to mean that it in any way involved a purchase of the real estate or of any interest therein by the defendant. It does not...
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