Taylor v. Lytle

• Decision Date: 18 May 1914
• Citation: 141 P. 92,26 Idaho 97
• Parties: H. C. TAYLOR, Appellant, v. CLARENCE L. LYTLE, Respondent
• Court: Idaho Supreme Court

141 P. 92

26 Idaho 97

H. C. TAYLOR, Appellant, v. CLARENCE L. LYTLE, Respondent

Supreme Court of Idaho

May 18, 1914

COMPLAINT-DEMURRER TO-DEFECT OF PARTIES PLAINTIFF-NECESSARY PARTY.

1. Held, that the court erred in holding that there was a defect of parties plaintiff and that the Springston Lumber Company was a necessary party plaintiff to the action.

APPEAL from the District Court of the Eighth Judicial District, in and for Kootenai County. Hon. John M. Flynn, Judge.

Action to recover damages on account of misrepresentation and fraud as to the boundary of certain land on which the plaintiff purchased the timber. A demurrer to the complaint was sustained on the ground that there was a defect of parties plaintiff, and the plaintiff having refused to amend judgment of dismissal was entered. Reversed.

Judgment reversed, with directions. Costs awarded to the appellant.

E. R Whitla, for Appellant.

Where one sells property and makes representations as to the quantity of land sold, he is liable in an action for damages in case his representations--whether believed by him to be true or not--are in fact false, and the boundary pointed out by him is not the true boundary and the vendee suffers any loss by reason thereof. (Miller v. Wissert, 38 Okla 808, 134 P. 62; McGhee v. Bell, 170 Mo. 121, 70 S.W. 493, 59 L. R. A. 761; Hoock v. Bowman, 42 Neb. 80, 47 Am. St. 691, 60 N.W. 389; Castenholz v. Heller, 82 Wis. 30, 51 N.W. 432; Porter v. Beattie, 88 Wis. 22, 59 N.W. 499; Davis v. Nuzum, 72 Wis. 439, 40 N.W. 497, 1 L. R. A. 774; Pringle v. Samuel, 1 Litt. (Ky.) 43, 13 Am. Dec. 214; Trenchard v. Kell, 127 F. 596.)

Even honesty in making a mistake is no defense, as it is incumbent upon the vendor to know the facts. (Culbertson v. Blanchard, 79 Tex. 486, 15 S.W. 700.)

Nonjoinder of a proper, as distinguished from a necessary, party is not ground for demurrer. (31 Cyc. 293.)

"In general, in an action founded upon tort the person who suffers the injury must bring the action, for he is the party in interest." (Bliss on Code Pleading, 521.)

"It is not necessary to join as plaintiff persons who do not appear by the complaint to be united in interest with the plaintiff in all the relief sought thereby." (Garner v. Wright, 28 How. Pr. 92; Washburn v. Case, 1 Wash. Ter. 253; Sheridan Gas, Oil & Coal Co. v. Pearson, 19 Ind.App. 252, 65 Am. St. 402, 49 N.E. 357; Moore v. Harmon, 142 Ind. 555, 41 N.E. 599.)

"Where a suit is brought on a contract, a person who is not a party to the contract and has no interest therein is not a necessary or proper party to the suit." (Hurlbutt v. N.W. Spaulding Saw Co., 93 Cal. 55, 28 P. 795.)

C. H. Potts, for Respondent.

The cause of action in this case is based on alleged fraudulent representations which resulted in the conveyance to the Springston Lumber Company of the standing timber described in the complaint. The lumber company is the grantee in the conveyance of the timber; the legal title was taken by it; it paid the cash consideration therefor, and executed the promissory note sought to be canceled by this action. It is therefore the real party in interest. Any private arrangement between the plaintiff and the lumber company as to how the title shall be held, or otherwise, could not affect the defendant. It is not alleged in the complaint that the defendant had knowledge of any arrangement between the plaintiff and the lumber company.

"The person having the legal interest in a contract can alone maintain an action thereon." (Wolverton v. Geo. H. Taylor & Co., 157 Ill. 485, 42 N.E. 49; Gardner v. Armstrong, 31 Mo. 535; Frankem v. Trimble's Heirs, 5 Pa. 520; Forrest v. O'Donnell, 42 Mich. 556, 4 N.W. 259.)

The allegation in the complaint that the Springston Lumber Company was an accommodation maker of the note in question does not change the situation in any particular. Under the provisions of the negotiable instruments law an accommodation maker of a promissory note is the real party in interest in any action based on such note and is primarily liable thereon. (Union Trust Co. v. McGinty, 212 Mass. 205, Ann. Cas. 1913C, 525, 98 N.E. 679; Vanderford v. Farmers' etc. Nat. Bank, 105 Md. 164, 66 A. 47, 10 L. R. A., N. S., 129; Cellers v. Meachem, 49 Ore. 186, 89 P. 426, 10 L. R. A., N. S., 133, 13 Ann. Cas. 997; Wolstenholme v. Smith, 34 Utah 300, 97 P. 329; Bradley etc. Mfg: Co. v. Heyburn, 56 Wash. 628, 134 Am. St. 1127, 106 P. 170; National Citizens' Bank v. Toplitz, 81 A.D. 593, 81 N.Y.S. 422; Richards v. Market Exchange Bank Co., 81 Ohio St. 348, 90 N.E. 1000, 26 L. R. A., N. S., 99; Lane v. Hyder, 163 Mo.App. 688, 147 S.W. 514; Lumbermen's National Bank v. Campbell, 61 Ore. 123, 121 P. 427.)

"In all actions those between whom there is a unity of legal interest must be joined as plaintiffs." (Burkett v. Lehmen-Higginson Grocery Co., 8 Okla. 84, 56 P. 856; Culver v. Smith, 82 Mo.App. 390.)

SULLIVAN, J. AILSHIE, C. J., Concurring Specially.

OPINION

SULLIVAN, J.

This action was brought to recover damages in the sum of $ 3,250 with interest, on account of alleged fraud and misrepresentation by the vendor to the plaintiff as to the location and boundary of a certain piece of timber land, the timber on which the plaintiff purchased from the respondent. A demurrer was filed to the second amended complaint, based on two grounds: (1) That said amended complaint did not state facts sufficient to constitute a cause of action; and (2) that there was a defect of parties plaintiff in that the Springston Lumber Company, a corporation, was not made a party plaintiff and was a necessary party. After hearing said demurrer, the court sustained it on the second ground, to wit, that there was a defect of parties plaintiff in that the Springston Lumber Company was not made a party to the action. The plaintiff thereupon refused to plead further and judgment of dismissal was entered.

The only question then presented for determination is whether the court erred in holding that said corporation was a necessary party plaintiff.

It is alleged in the complaint that on or about October, 1911, the defendant offered to sell to the plaintiff certain timber growing upon the south half of the northwest quarter, and the northwest quarter of the southwest quarter of section 34, and the southeast quarter of the northeast quarter of section 33 township 49, north of range 2, west of Boise meridian, in Kootenai county; that the plaintiff was desirous of purchasing said timber and especially the white pine timber growing on said land, and thereafter, at the instance and request of said defendant, went with him to the locality of said land; that plaintiff was not familiar with that locality and did not know the lines or boundaries of said land; that defendant pointed out to him what he claimed was the correct boundaries of the land in order that plaintiff might get an estimate of the timber standing thereon; that the defendant, with intent of deceiving and defrauding plaintiff and inducing him to purchase said timber, pointed out to him a certain blazed line which he stated was the southern line of the south half of the northwest quarter of said section 34, and the southeast quarter of the northeast quarter of section 33, and stated that said blazed line was the northern boundary line of said land; that said blazed line was not the northern boundary line, but was about 260 feet north and parallel to the true and correct boundary line of said land, and that defendant knew that it was not the correct boundary of said land at the time he pointed the same out to the plaintiff, but fraudulently made said representation to the plaintiff because there was standing on said strip of land, about 260 feet in width between the true and false boundary line, a large amount of valuable white pine timber consisting of 250,000 feet of the stumpage value of $ 1,500, and 600,000 feet of mixed timber of the stumpage value of $ 1,500, and 100 cedar poles of the value of $ 75; that because of the quantity and quality of the timber on said strip of land and because it was lying so that it could be conveniently logged at a small cost, the value of the timber on the entire tract of land was increased; that plaintiff believed the representations and statements of the defendant as to said boundary line, and because of such false representations and statements the plaintiff was induced to purchase the timber upon the legal subdivisions before set forth, and that without such representations having been made plaintiff would not have purchased such timber; that because of such representations plaintiff purchased said timber from the defendant for the sum of $ 12,000; that after so purchasing said timber, plaintiff built roads upon said strip of land for the purpose of logging the timber upon the same, and that at least $ 150 was expended for the sole and only purpose of removing the timber upon said strip of land lying between the correct boundary line and the false and untrue boundary line so pointed out to plaintiff by defendant; that plaintiff, relying upon the false representations of defendant as to the location of said boundary line and believing them to be true, went upon said strip of land and cut down 33,000 feet of white pine timber, and thereafter learned that said strip of land lying between the alleged boundary line pointed out by the defendant and the true boundary line belonged to one W. J. Johnson and the United States government; that plaintiff, because of said representations, cut $ 175 worth of timber upon said Johnson's land and $ 75 worth of timber growing upon government land; that plaintiff first discovered that the statements and representations made by defendant as to the location of said north boundary line were...