Thomas v. Ryan

• Decision Date: 27 October 1909
• Citation: 123 N.W. 68,24 S.D. 71
• Parties: THOMAS v. RYAN et al.
• Court: South Dakota Supreme Court

24 S.D. 71

123 N.W. 68

THOMAS

v.RYAN et al.

Supreme Court of South Dakota.

Oct. 27, 1909.

Appeal from Circuit Court, Spink County.

Action by Z. W. Thomas against J. W. Ryan and another. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. Affirmed.N. P. Bromley, for appellant.

Bruell & Morris, for respondents.

SMITH, J.

Action to cancel a deed because of alleged false and fraudulent representations. A jury was impaneled to try the issues of fact. At the close of plaintiff's evidence defendants moved for direction of a verdict on the ground that “plaintiff has failed to prove the existence or commission of any fraud,” and for other reasons stated in the motion which we do not deem material to the consideration of the case. As stated in the record, the motion was granted and the action dismissed. No verdict is stated in the abstract, but the court made and filed findings of fact and conclusions of law, and entered a judgment dismissing the action with costs, all of which appears in the abstract. The ruling of the court upon the motion to direct a verdict is assigned as error. The action, however, invokes the equity powers of the court, and the defendants have no legal right to demand a jury trial. The submission of issues of fact to the jury in equity cases is a matter wholly in the discretion of the trial court. The impaneling of the jury and submission of the evidence in no manner abridges this discretionary power, and the court at any stage of the trial may withdraw the case from the jury, and itself try and determine the issues involved. Such was the effect of the proceedings had on the trial in this case. Appellant presents four assignments of error. The second and third relate to the action of the court in withdrawing the case from the jury, and are fully disposed of by the above observations.

The facts, briefly stated, are as follows: The Ryan Implement & Hardware Company was a corporation dealing at wholesale and retail in hardware and agricultural implements, and having its chief place of business at Ft. Dodge, Iowa. The company had four branch houses. The defendant J. W. Ryan was general manager from the beginning of its business to the spring of 1905, a period of about five years. At that time one A. M. Felts was elected secretary and general manager and Ryan assistant manager. Ryan was the owner of certain stock in this corporation. The defendant A. E. Edwards was an employé of the company. In April, 1905, the defendant Edwards, at the request of Ryan, went to the plaintiff's office and asked plaintiff whether he had any land he would like to trade with J. W. Ryan for Ryan Implement and Hardware Company stock. Plaintiff told him he had land he might trade if the stock was all right; that he would think the matter over, and see him again. The plaintiff testifies as follows: “Mr. Edwards came back to me again, and I asked him more fully about the affairs of the company. He told me that Mr. Ryan could explain that to me better than anybody else, and sent me to Mr. Ryan. I went to Mr. Ryan to look what the standing of the company and value of the stock was. I went to their general office, and I told Mr. Ryan that Mr. Edwards had been talking to me about the exchange of some stock belonging to him to me for some land in South Dakota, and I would like to know the condition of the affairs of the company and the value of the stock. Mr. Ryan said: ‘There sits Mr. Felts at the table. He has the secretary's books, and he has a statement there that...