Washabaugh v. Hall

• Decision Date: 19 August 1893
• Citation: 56 N.W. 82,4 S.D. 168
• Parties: FRANK J. WASHABAUGH, Plaintiff and respondent, v. HERBERT S. HALL, Defendant and appellant.
• Court: South Dakota Supreme Court

4 S.D. 168

56 N.W. 82

FRANK J. WASHABAUGH, Plaintiff and respondent, v. HERBERT S. HALL,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. William Gardner, Judge

Affirmed

Schrader & Lewis

Attorneys for appellant.

G. C. Moody and J. W. Fowler,

Attorneys for respondent.

Opinion filed August 19, 1893

KELLAM, J.

This action was brought to recover the $500 paid by respondent to appellant referred to in a writing, whose execution and delivery are conceded, and reading as follows:

“Exhibit B. Rapid City, Dakota, December, 30, 1885. Received of Frank J. Washabaugh the sum of $500 cash, and his promissory note for the sum of $500, bearing even date herewith, and drawing interest at the rate of ten per cent per annum, which said note and cash are in full payment for a one-sixteenth interest in and to the southeast quarter of section 25, township 2, north range 7, east B.H.M., provided Herbert S. Hall, to whom the cash is paid and note delivered, shall perfect title to the same above described land in himself, within sixty days from the date hereof; otherwise to be refunded to the said F. J. Washabaugh.

“H. S. Hall.”

Plaintiff had judgment, and defendant appeals.

Upon the trial it was sufficiently shown that much more than the 60 days mentioned in the writing had elapsed; that appellant had not perfected title in himself, as we shall presently see; and that respondent had demanded a return of the $500 paid, which was refused. In his defense, appellant pleaded, and on the trial made an effort to show, that, in receiving said money, and in securing the title to said land, or trying to do so, he was acting as the agent of respondent and others, with no understanding on the part of either that he was assuming any independent obligation to procure such title, or any understanding that it would be a good title when so procured; so that if, acting in good faith and upon his best judgment, he procured the best title he could obtain, though not a perfect one, he had discharged his duty as agent, and the loss should fall upon the principal, and not upon him, the agent. The exclusion of such evidence is the first ground of error assigned. We think the trial court was right. Appellant by executing and respondent by accepting this writing had agreed to it as correctly defining their relations to each other. It was not ambiguous in meaning, nor was there any claim that it was given or obtained through mistake, accident, or fraud. The legal effect was that of an agreement executed on the part of one, executory on the part of the other. The contest was between the very parties to it. To allow it to be shown on the trial that it was not intended to be, and was not in fact, what it purported to be, would violate one of the first and most elementary rules of evidence. Sections 3553, 3554, Comp. Laws; Dean v. Bank, 6 Dak. 222, 50 N.W. 831; Thompson v. McKee, 5 Dak. 172, 37 N.W. 367; Van Brunt v. Day, 81 NY 251.

Appellant contends, however, that the evidence presented by him showed that he had perfected title in himself, and that, therefore, respondent could not reclaim the money paid. The whole tract consisted of 160 acres. It appears that, at the time of the payment of this money and the execution of the writing, the title of this land was still in the United States government; that after a patent for one 80 of the same was issued to “J. Carlos Stevens, minor orphan child of Silas B. Stevens, deceased;” that prior to the issuance of said patent, one Eliza A. Center, describing herself as “guardian of J. Carlos Stevens, minor orphan child of Silas B. Stevens, deceased, had made a power of attorney authorizing the attorney therein named “to sell said lands or any interest therein, and to make any contract in relation thereto which I [she] might make if present;” the land so referred to being the 80 afterwards patented as above stated to the minor orphan, J. Carlos Stevens. Under the authority of this power, the attorney named, prior to the issuance of the patent therefor, executed a conveyance in the name of said Eliza A. Center, as guardian, of “all her estate, right, title, and interest, claim, property, and demand of, in and to” the said land to one Whitfield who had already by warranty deed conveyed the same to said appellant Hall. Did the title thus acquired by Hall substantially meet the condition upon which the deposit of $500 by respondent was to become a payment on the...