Wayne v. Butterfield

• Decision Date: 15 November 1926
• Docket Number: 5878
• Citation: 50 S.D. 463,210 N.W. 663
• Parties: LARMIE WAYNE, Plaintiff and appellant, v. V. H. BUTTERFIELD et al, Defendants and respondents.
• Court: South Dakota Supreme Court

50 S.D. 463

210 N.W. 663

LARMIE WAYNE, Plaintiff and appellant, v. V. H. BUTTERFIELD et al,

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. Alva E. Taylor, Judge

#5878--Affirmed

Null & Royhl, Huron, SD

Crawford & Crawford, Huron, SD

Gardner & Churchill, Huron, SD

Attorneys for Appellant.

C. A. Kelley, Dick Haney, Huron, SD

Attorneys for Respondents.

Opinion filed November 15, 1926

SHERWOOD, J.

This complaint sets forth two causes of action: First, to recover $10,320 for money had and received by defendants; second, to recover $3,666.24 for money paid to defendants, and at their instance and request paid out for defendants' use and benefit.

The answer is quite long, and, because of the issues involved, it is necessary to set it out quite fully. It admits receipt by the defendants of the sum of $10,320, and that no part thereof has been repaid to plaintiffs, and that repayment was demanded on the day this action was brought. As a defense it alleges that, at the time the above mentioned sum of money was received by the defendants from the plaintiffs, the defendants were owners in equal shares of E. 1/2, Sec. 19, W. 1/2, Sec. 20, and S. E. 1/4, Sec. 20, Tp. 110, R. 63, except Chicago, Milwaukee & St. Paul right of way, and subject to mortgages of $60,500, and that the legal title to said land was in defendant Tredway, in trust for all the defendants; that said property had been previously purchased and was held by defendants for the purpose of selling or trading the same, subject to the mortgages, and sharing equally in whatever profit or loss might result from the venture; that, when the money was paid to defendants, it was agreed between plaintiff and defendants that, in consideration of said payment, plaintiff should acquire a one-half interest in the property; and that defendant Butterfield should retain and have the other half interest; that at the time, and in pursuance of said agreement, a warranty deed, in South Dakota statutory form, conveying said real property, subject to the mortgages of record thereon, was duly executed and acknowledged by the defendant Tredway and his wife, with the name of the grantee left blank; that it was understood and agreed between the plaintiff and defendants that whenever plaintiff and Butterfield would sell said property, subject to said mortgages, plaintiff and defendant Butterfield were authorized to insert in said deed the name of any grantee to whom they might transfer the property; that plaintiff and Butterfield should share equally in the profit or losses resulting from the venture, and that defendant Tredway would, Whenever requested by plaintiff, furnish whatever written authority might be necessary to complete said deed; and further alleged that after acquiring said half interest in said property and venture, plaintiff negotiated with one H. H. Hamilton of St. Paul, Minn., for the sale of said property to Hamilton; that plaintiff and Butterfield went to the

[50 SD 66]

state of Michigan for the purpose of ascertaining the value of certain securities which Hamilton was proposing to exchange for said property; that thereafter, and about November 3, 1921, plaintiff and Butterfield entered into a written contract with Hamilton whereby it was agreed that plaintiff and Butterfield would convey to Hamilton or his nominee by good and sufficient warranty deed, clear of incumbrances, except mortgages for $60,500, all the property described in said deed from defendant Tredway, and that said Hamilton should pay to plaintiff and Butterfield, as a consideration for the same, $108,000, to be paid by assuming the mortgages of record on the land and interest due thereon, and by transferring to plaintiff and Butterfield certain bonds and notes secured by mortgages on land in northern Michigan; that thereafter, in pursuance of said contract, plaintiff and defendant Butterfield delivered said warranty deed to Hamilton, and received from Hamilton substantially all the security provided for in said contract, of which plaintiff received half and Butterfield half; that neither plaintiff nor any other person has ever requested defendant Tredway to insert the name of any grantee in said deed, or to authorize Such insertion, although defendant Tredway has at all times been, and now is, ready and willing to execute a proper conveyance of said property, subject to said mortgages. Alleges that, after the transfer of a half interest in said property and venture to plaintiff, neither the defendant Tredway nor the defendant McGinty had any interest in said enterprise, or did anything in relation to the transfer of the property to Hamilton.

Answering the second cause of action, defendant alleged that, after plaintiff acquired a one-half interest in said property and venture, he assumed actual personal control and management of the property, and continued to have actual personal control and management thereof until the property was transferred to Hamilton, that plaintiff exercised all the rights of owner of said property, leased the same, and collected rents thereon, performed labor thereon, and expended money in keeping the premises in repair; denies any knowledge of the amount so expended, and alleges that whatever sums were so expended were not spent at the request of, or for the benefit of, any of the defendants, but voluntarily expended by plaintiff on his own behalf and for his own benefit as a half owner in said property.

Later, and pursuant to an order of the court, plaintiff made the following bill of particulars:

"(1) That as to the contractual relation existing between the plaintiff and the defendants, at the time of the payment of the moneys as set forth in the first cause of action, ... defendants were joint owners of the lands described, although the legal title to said lands was held by the defendant, Tredway.

"(2) That is to the facts upon which it is claimed defendants, or either of them, became indebted to plaintiff in the sum stated in the first cause of action in plaintiff's complaint, plaintiff states that at the time of the payment of said money the defendant V. H. Butterfield represented to the plaintiff that, if plaintiff would pay defendants the said sum of money, to wit, $10,320, he would convey, or cause to be conveyed, to plaintiff an undivided one-half interest in and to the land hereinafter described. Plaintiff, relying on this said representation so made by the defendant V. H. Butterfield, ... paid said $10,320 to defendant; ... that each of said defendants received one-third of said money so paid by plaintiff with full knowledge of the representation so made to plaintiff by the defendant Butterfield."

The case was tried on these issues. At the close of the evidence the court, on defendants' motion, directed a verdict for defendants, and plaintiff appeals.

There are four assignments of error, only two of which need be considered in the determination of this case. They are assignments Nos. 1 and 2, as follows:

No. 1. Error "in granting defendants' motion for direction of verdict."

No. 2. Error "in excluding, the evidence offered by plaintiff tending to show the value of the Michigan mortgages."

Under assignment No. 1. appellant states his contention as follows:

"The error consists in this, that the undisputed evidence shows that no enforceable contract was entered into by which the defendants, or either of them, and particularly the defendant Tredway, were bound to deliver to plaintiff a warranty deed and abstract to a one-half interest in the Tredway lands that the plaintiff, not having received either the deed or an enforceable contract for a deed, is entitled to recover the money paid on the void agreement. Appellant further argues that, after plaintiff paid his money,

Tredway and McGinty each still owned an undivided one-sixth of this land. With these contentions we cannot agree.

It appears from the evidence that V. H. Butterfield, L. C. Tredway, and J. B. McGinty, respondents in this case, were joint owners of the east half of section 19 and the west half and southeast quarter of Section 20, township 110, range 63, in Beadle county, subject to a mortgage of $60,500.

The title to this land was taken in the name of Tredway, but he held the title as trustee for all three; each having paid one-third of the purchase price and owning an undivided one-third interest in the land.

About a year after defendants...