Voeller v. Geisler, No. 9670

• Court: Supreme Court of South Dakota
• Writing for the Court: McCLASKEY; McCLASKEY
• Citation: 86 N.W.2d 395,77 S.D. 96
• Parties: Frank VOELLER, Plaintiff and Appellant, v. L. B. GEISLER and Jack J. Ganje, d.b.a. Geisler Land Company, Defendants and Respondents.
• Docket Number: No. 9670
• Decision Date: 02 December 1957

Page 395

86 N.W.2d 395 77 S.D. 96 Frank VOELLER, Plaintiff and Appellant,
v.
L. B. GEISLER and Jack J. Ganje, d.b.a. Geisler Land
Company, Defendants and Respondents. No. 9670. Supreme Court of South Dakota. Dec. 2, 1957.

[77 S.D. 98] Charles E. Gorsuch, Aberdeen, for plaintiff and appellant.

Williamson & Schutz, Aberdeen, for defendants and respondents.

McCLASKEY, Circuit Judge.

Plaintiff is a farmer and defendants are real estate brokers at Aberdeen. The 640 acres of land in question was owned by Myrtle A. Treat and Emma L. Shephard who reside in Minnesota.

On January 6, 1955 plaintiff executed a written offer to buy the section at $32.50 per acre, for which he was to get a title free from encumbrance. He delivered the offer and $1,000 down payment to defendants who sent them to the owners in Minnesota. The owners accepted the offer and sent abstracts of title to defendants. Defendants notified plaintiff by letter that his offer had been [77 S.D. 99] accepted, and delivered the abstracts to the Aberdeen representative of Federal Land Bank of Omaha from which plaintiff was borrowing the balance of the purchase price.

Owners Treat and Shephard also placed their warranty deed to plaintiff in escrow with First National Bank of Aberdeen with instructions to deliver the deed upon receipt of the balance due them. The balance was paid and plaintiff accepted the deed.

However, plaintiff did not get a clear title as certain unpaid taxes constituted a lien upon the land. He demanded payment of the taxes from defendants, and upon their refusal to pay he brought this action. The trial resulted in a directed verdict for defendants, and judgment based upon it. Plaintiff appealed.

Plaintiff presents nine Assignments of Error. In his brief he groups for discussion Assignments I to V inclusive, and Assignments VI to IX inclusive. We will treat them in the same way.

Assignments I to V inclusive charge error in rejecting plaintiff's Exhibits 6 and 9, and in sustaining objections to three questions. The objections were that the exhibits, and the facts sought by the questions, were irrelevant and immaterial under the issues.

The purpose of the rejected evidence was to show that defendants had a secret agreement with the owners to receive $2.50 per acre commission on the sale.

The cause of action tendered by the complaint is that defendants contracted to deliver the land to plaintiff free of encumbrance, but that they delivered it subject to an encumbrance and are therefore liable to plaintiff in damages. The action is one of simple breach of contract. Its character is shown in paragraph III of the complaint:

'That the defendants represented that the real property above described

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was owned by Myrtle A. Treat and Emma L. Shephard who lived in Minnesota, and that such land could be purchased for $32.50 per acre free and clear of all encumbrances; that at such time the defendants had an agreement [77 S.D. 100] with the said Myrtle A. Treat and Emma L. Shephard, wherein and whereby they would sell such real estate for a sum of $30.00 per acre net to them; that the plaintiff herein was unaware of defendants' agreement with Myrtle A. Treat and Emma L. Shephard, and thereafter entered into an agreement with the defendants wherein and whereby they agreed to deliver to said plaintiff title to the above described real estate for $32.50 per acre, or a total sum of $20,800.00, free and clear of all encumbrances.

'That plaintiff paid said defendants $20,800.00 for such 640 acres, and defendants delivered to plaintiff a deed to such Section 34, Township 128, Range 64, Brown County, South Dakota, but defendants failed to deliver such real property free and clear of all encumbrances, in that they failed to pay the 1954 real estate taxes thereon in the sum of $501.28.'

It is observed that, along with the statement of the essential elements of the contract, plaintiff injected this extraneous matter:

'* * * that at such time the defendants had an agreement with the said Myrtle A. Treat and Emma L. Shephard, wherein and whereby they would sell such real estate for a sum of $30 per acre net to them; that the plaintiff herein was unaware of defendants' agreement with Myrtle A. Treat and Emma L. Shephard * * *.'

If this was an attempt to plead fraud, it falls short of doing so.

'To be sufficient, a pleading setting up fraud as a basis of recovery of damages must clearly and distinctly allege all of the essential elements of actionable fraud.' 37 C.J.S. Fraud Sec. 81.

If no cause of action for fraud was intended this allegation is mere surplusage. It in no way tends to establish the breach of contract charged. Its sole purpose appears to be to express the erroneous assumption that [77 S.D. 101] defendants were under duty to volunteer to plaintiff the fact that they were receiving a broker's commission. Giving plaintiff's evidence full credence it does not show plaintiff's employment of defendants, or that there was a fiduciary relationship between them.

Plaintiff went to defendants because he knew they were real estate brokers. He told them that he wanted to buy this section and would like to get it for $30 per acre. They were to ascertain who were the owners and what the land could be bought for. That was the extent of their authorization and responsibility. In one of their functions real estate brokers act as middlemen and nothing was said to indicate that plaintiff dealt with them in any other capacity.

Subsequently they reported that the owners were Treat and Shephard and that the price to plaintiff would be $32.50 per acre. Plaintiff said he would pay it and he executed Exhibit 1 in which he offered to pay that price, and in which Treat and Shephard were identified as the owners.

From the evidence it is clear that plaintiff's contract was with Treat and Shephard. If plaintiff wanted to change his cause of action against defendants to some other ground, he would have had to amend. He did not offer to do so and the rejected evidence is wholly irrelevant to the issue pleaded.

It is also true that the evidence in question is elsewhere in the record.

Hence no error can be predicated upon...