Wolfinger v. Thomas
| Decision Date | 05 February 1908 |
| Citation | 115 N.W. 100,22 S.D. 57 |
| Parties | C. F. WOLFINGER, Plaintiff and respondent, v. HARLEY THOMAS et al., Defendant and appellant. |
| Court | South Dakota Supreme Court |
HARLEY THOMAS et al., Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Aurora County, SD Hon. Frank B. Smith, Judge Modified and affirmed Preston & Hamlett Attorneys for appellants. P. A. Zollman Attorneys for respondent. Opinion filed February 5, 1908
This action was instituted by the plaintiff to rescind an executed contract for the sale of a certain quarter section of land in Brule county, entered into by him with the defendant. On the ground of fraudulent representations by the defendant in inducing the plaintiff to enter into the same. Plaintiff alleges in his complaint, in substance, that the contract was made and entered into on the 10th day of April, 1905, by the terms of which it was provided that said Thomas did that day sell to the plaintiff the southeast quarter of section 30, township 105, range 67, in Brule county, at the agreed price of $2,600, and for which the plaintiff agreed to pay the sum of $1,100 in cash and a stallion valued at $1,500; that the plaintiff paid said defendant the sum of $1,100, and delivered to him the stallion described in the contract; that the plaintiff was induced to enter into said contract by the fraudulent representations of the defendant upon which he relied; that the said fraudulent representations consisted of the pointing out by the defendant through his agent to the plaintiff of a different and more valuable quarter section of land as the one to be conveyed instead of the quarter section of much less value actually conveyed to the plaintiff by the defendant; that the plaintiff, prior to the commencement of the action, and immediately upon the discovery of said fraud, notified the defendant that he rescinded said contract, and offered to reconvey to him the premises conveyed to him under the terms of said contract upon the payment to him of the sum of $1,100, with interest and the return of said stallion, and the plaintiff demanded judgment that the said contract be rescinded by Order of the court and delivered up and canceled, and for the recovery of the stallion described in said contract, and, in case the same could not be delivered, for $1,500, the agreed value of the same in the contract. The defendant by his answer admitted that the defendant conveyed to the plaintiff the land described in said contract, and that the plaintiff paid the defendant the agreed price therefor, and denied all the other allegations of the complaint. On the trial of the the case, after the plaintiff and defendant had rested, the court, upon its own motion, against the objection of the defendant, allowed the plaintiff to amend his complaint, alleging the cause of action founded on mutual mistake instead of fraudulent representations on the part of the defendant as alleged in the original complaint; the original answer being allowed to stand as the answer to the amended complaint. It appears from the evidence that the plaintiff failed to prove any fraudulent representations on the part of the defendant or his agent; but the evidence clearly establishes the fact that there was a mutual mistake on the part of the plaintiff and defendant. The court in its findings finds that there was a mutual mistake between the parties in entering into the contract, and concludes that the plaintiff is entitled to a rescission of the contract; that he was entitled to recover $1,100 and interest from June 5, 1905, at the rate of 7 per cent, per annum, and was entitled to recover the possession of the stallion described in the contract, together with the value of the use of the same from April 14, 1905, and, in case the stallion could not be delivered, then he was entitled to recover $800 the value of the same, and interest at 7 per cent. from April 14, 1905; and that the plaintiff was entitled to a lien on the quarter section described in the contract for the satisfaction of said judgment, and judgment was thereupon entered accordingly.
It is contended by the defendant that the court, in permitting the plaintiff to amend his complaint at the trial by changing it from an action to rescind the contract on the ground of fraudulent representations on the part of the defendant to an action to rescind the contract on the ground of mutual mistake of the parties, committed
[22 SD SD 60]
error, as such an amendment at the trial is not permissible under the provisions of our Code authorizing amendments to pleadings at the trial, for the reason that the amendment substantially changed the claim of the plaintiff from that originally claimed in his complaint of fraudulent representations on the part of the defendant to that of mutual mistake by the parties. The amendment was ordered by the court, evidently for the purpose of conforming the pleadings to the proof in this action, and the principal question presented by this court for its consideration is, was the court authorized under the provisions of our Code to permit this amendment? Section 150, Rev. Code. Civ. Proc., provides that “the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper. amend any pleading, process, or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect; or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense by conforming the pleading or proceeding to the facts proved. or by facts in support of which proof is offered. …” It will be observed that this section of the Code is broad and comprehensive, and authorizes the court on the trial or subsequently thereto to permit the pleadings to be amended to conform to the facts proven when the amendment “does not change substantially the claim or defense.” This section of our Code is substantially the same as those found in the Codes of most of the Code states. The courts of those states have generally given to the section a very liberal construction in order to prevent a failure of justice and the dismissal of actions on the ground of variance between the allegations of the complaint and the evidence given on the trial in order that litigation between the parties may as far as practicable be disposed of in one action instead of encouraging a multiplicity of actions. The primary object of the plaintiff in the case at bar was the rescinding of the contract which he had entered into, and to recover from the defendant the consideration paid under the terms of said contract.
The claim of the plaintiff in the broad sense of the term was not intended to be and was not in fact changed, either as regards form or the general scope of the controversy involved, other than the elimination therefrom of the fraudulent representation on the part of the defendant and the substitution therefor of mutual mistake of the parties. The amendment worked no change in the form of the action as to its being legal or equitable, nor changed the nature of the recovery necessary to vindicate the plaintiff’s rights. In the original complaint the plaintiff sought to rescind the contract and recover back the consideration paid thereunder, and in the latter he sought to obtain the same relief on the ground of mutual mistake of the parties, and to close up the matter in controversy which led to the litigation. The result was the elimination of the fraudulent representations and the substitution in its place of the mutual mistake of the parties, in either case the rescission of the contract and the recovery of the consideration paid thereunder were the real objects of the controversy. The contention of the appellant, therefore, that the amendment effected a change in the plaintiffs claim contrary to the provision of the Code, is untenable.
We are of the...
To continue reading
Request your trial