Abbildungen der Seite
PDF
EPUB

motion, were also excepted to; but we think that although certain isolated paragraphs, taken by themselves, may be open to criticism, they are fully cured by subsequent observations. The whole tone and purport of the charge is certainly as favorable to the defendants as they could ask or expect. In fact, it leaves fully to the jury the only disputed question in the case, namely, was the transaction between Babb and the plaintiff an absolute and irrevocable, or a conditional and revocable, sale and transfer of the cattle? and instructed them. that if they found the sale to have been an absolute one, they should render a verdict for the plaintiff, and if they found the sale to have been a conditional one, their verdict should be for the defendant. This was, in effect, the whole case, and we think it was very fairly left to the jury.

The defendants' position was most strongly and favorably presented in their second charge, which was given by the court, and is as follows:

"If the jury believe from the evidence that the title to the cattle remained in the Babbs until the notes were paid, and that said notes were not paid on the day of maturity, or at any time since then, Babb had the right to retake the cattle and sell them to others; and if he did so, and sold them to Segrist, the jury should find the defendants not guilty."

This certainly was the most favorable view which the jury could. possibly be permitted to take of the transaction. We do not think that the evidence would have justified them in taking such a view, but the the court left it to them to do so, and certainly the defendants cannot complain. Taken as a whole, we do not think the charge can be said to have misled the jury, or in any manner prejudiced the defendants, so as to justify a new trial.

The judgment should be affirmed; and it is so ordered.

WILSON, J., concurred.

(3 N. M. [Gild.] 443)

TEXAS, S. F. & N. R. Co. v. SAXTON and another.

[merged small][merged small][ocr errors][merged small]

A bill of exceptions, not settled and signed by the presiding judge below within the time required by law, is not properly before the appellate court. 2. SAME-RULE 21-RULES OF COURT-NEW MEXICO.

Rule 21 of the rules of the supreme court of New Mexico, requiring the plaintiff in error or his agent to file the affidavit therein prescribed, was made under the authority of the practice act of 1874, which act was superseded by the practice act of 1880; and this rule, therefore, is abrogated.

3. SAME-PLEA IN ABATEMENT-TRIAL BY JURY-VERDICT-JUDGMENT — QUOD RECUPERET RESPONDEAT OUSTER.

Where a plea in abatement has been filed, which raises an issue in fact, and the issue thus formed is tried by a jury, or by the court, trial by jury being waived, if the verdict is against the truth of the plea, the proper judgment is quod recuperet and not respondeat ouster.

Error to the district court for the county of Santa Fe.

C. H. Gildersleeve, for plaintiff in error.
E. L. Bartlett, for defendants in error.

BELL, J. This was an action in assumpsit, brought by the defendants in error in the court below, to recover damages for an alleged breach of a railroad construction contract which they had theretofore made with the plaintiff in error. To the declaration the plaintiff in error interposed a plea in abatement, which in substance alleged that the contract sued upon was made by it, not with the two defendants in error, but with Lionel D. Saxton alone. This plea was accompanied with interrogatories, filed for the purpose of examining Saxton, in support thereof. Replication to the plea was filed, and thereafter, upon the issue so joined, the parties proceeded to trial before the court, having by stipulation waived their right to trial by jury. The court found for the defendants in error, whereupon the plaintiff in error asked for leave to plead over, and offered to file instanter its plea in bar to the plaintiff's several causes of action. The court denied this motion, and thereupon counsel for the defendant in error moved the court to render peremptory judgment for the amount of the damages claimed, to-wit, $25,000, which motion was then and there granted, and judgment entered against the plaintiff in error for that sum. fore granting the motion for judgment, the plaintiff here, and defendant in the court below, moved the court to impanel a jury to try the cause, which motion was also denied.

Be

No evidence whatever was introduced to support the claim of the defendants in error to the sum set forth in their declaration as the damages sustained by them, or of any other sum, and judgment was entered against the plaintiff in error without any evidence whatever being introduced upon the merits. A motion was then made for a new trial, for a number of reasons; among others, "that the plaintiff's suit was for unliquidated damages, and no witnesses whatever were sworn, and no proofs whatever were adduced on said trial to prove the plaintiffs had sustained any damages whatever;" and also that "the judgment against the defendants was rendered without any proof whatever to sustain the plaintiff's action, no witnesses or other evidence being produced on said trial to prove any damage in favor of said plaintiff." This motion was denied. A motion was also made in arrest of judgment for substantially the same reasons. This motion was also denied. A bill of exceptions was subsequently prepared and filed and settled, but we are of opinion that they are not properly in the record before us, as they were not settled and signed by the presiding judge within the time required by law. A writ of error was sued out by the plaintiff in error, and that brings before us the entire record, excluding the aforesaid bill of exceptions.

us.

We shall only consider two of the questions seriously urged before The first was raised upon a motion to dismiss the writ of error, because rule 21 of this court had not been complied with, in that neither the plaintiff in error nor his agent or attorney had filed the

necessary affidavit therein prescribed. That rule was made under the authority of the practice act of 1874, requiring the supreme court to make rules for the government of the practice in writs of errors in common-law actions. Inasmuch, however, as the practice act of 1880 provides that "the clerk of the supreme court shall issue a writ of error to bring into the supreme court any cause finally adjudged or determined in any of the district courts, upon a præcipe therefor, filed in his office by any of the parties to such cause, his attorney or solicitor, at any time within one year from the date of such judg ment or determination, and on giving security for costs therein to the satisfaction of the clerk." We are of opinion that it was not neces sary for this plaintiff to have complied with the rule of the supreme court before quoted, the statute having superseded it, and in effect abrogated it. We are therefore of the opinion that the case is properly before us upon the writ of error.

The other question to be considered is, did the court err, as alleged by the plaintiff here, in entering judgment against it in the court below for the entire amount of unliquidated damages, alleged to have been sustained by the defendants in error in their declaration, without the introduction of evidence? The plaintiff in error here claims that, upon its plea in abatement being overruled, it was entitled to plead over to the merits. This is not in accordance with the well-settled rule of law in that regard. Where a plea in abatement has been filed which raises an issue of fact, and the issue thus formed is tried by a jury, or, as in this case, by the court, trial by jury being waived, if the verdict is against the truth of the plea, the proper judgment is quod recuperet, and not respondeat ouster. The defendants in error were therefore entitled to their judgment to recover upon the verdict on the plea in abatement. We are of opinion, however, that thereupon the well-settled rules of practice required that an inquest should be taken, to enable the court or jury, as the case may be, to determine from the evidence what amount of damages the plaintiffs had sustained. Upon such inquest, the defendant in the court below would have been entitled to resist, by proper evidence, the claim of the plaintiffs to recover anything more than nominal damages, and should have had that opportunity afforded it to that end. In the case at bar no evidence was permitted to be introduced on either side, but a peremptory motion, as it is called in the record, was granted, giving to the plaintiffs a verdict for the entire amount of their unliquidated damages. We think the court erred in granting this motion, and in entering judgment thereon. The judgment of the court below is therefore reversed, and a new trial ordered, with the costs to abide the event.

WILSON, J., concurred.

(8 Colo. 159)

SUPREME COURT OF COLORADO.

SCHOELLKOPF v. LEONARD.

Filed February 20, 1885.

1. AGENCY-BREACH OF FAITH-SALE OF LAND-PROOF Required.

In an action against an alleged agent to recover the difference between the amount of money actually received by plaintiff for the sale of his land and that at which it was privately sold by the defendant,-the latter figure being the price originally asked by plaintiff, which was reduced to the amount he subsequently received at the instance of defendant,-the question of defendant's agency and bad faith must be proved before a recovery can be had. 2. VERDICT-INTEREST-HOW PROPERLY STATED.

It is the best practice to require the amount of the interest, when ir terest is recoverable, to be computed and expressed in the verdict, either separately or as part of the aggregate sum awarded, but it is permissible for the jury to simply append the words "with interest," and the rate per cent., to the amount given in their verdict.

Appeal from district court, San Juan county.

Charles & Dillon, for appellants.

John G. Taylor and L. C. Rockwell, for appellees.

HELM, J. The ground of defendant's demurrer relied upon is that two causes of action were improperly inserted in the complaint. The objection is not well taken; but if it were, defendant waived the error by pleading over. The complaint is perhaps a little inartificial, but the intent of the pleader is sufficiently expressed. Plaintiff avers that defendant became his agent for the purpose of negotiating the sale of a certain mine or interest therein; that while acting in such fiduciary capacity, defendant, by misrepresentation and deceit, procured plaintiff's consent to accept $2,000 less for the property than the price first agreed upon, which sum defendant actually received, but wrongfully and fraudulently converted to his own use. The action is brought to recover this $2,000, with interest from the date of the conversion. The agency and the bad faith of defendant are denied, and squarely put in issue by the answer. Upon both questions the evidence is conflicting. Had the jury found either way upon that of agency, we might not feel warranted in disturbing their finding. But, as we view the case, it was necessary for the jury to determine this question. The recovery by plaintiff can only be sustained, under the pleadings, upon the theory that the agency averred actually existed. It was therefore necessary that the instructions properly submit this issue to the jury. This they failed to do; two only were given, and the one under which the verdict must have been found reads as follows:

"If the jury believe from the evidence the plaintiff was originally to receive $18,000 for the property conveyed, and subsequently took the lesser sum of $16,000 in consequence of the misrepresentations of the defendant, and, by reason of such misrepresentations, the defendant obtained an advantage of the plaintiff, and did, in fact, obtain $20,000 for the property conv.6p,no.4--14

veyed by the plaintiff to him, you will find for the plaintiff in the sum of $2,000, with interest at the rate of 10 per cent. per annum from the date of the transaction in October, 1879."

It is not necessary under this instruction for the jury to determine whether or not the relation of agency existed between the parties. Upon finding that defendant made the misrepresentations, and that by reason thereof plaintiff took the lesser sum mentioned, and defendant thus obtained an advantage, they could return a verdict for plaintiff. The fixing of the escrow price at $18,000 is not controverted. But counsel, in one part of their argument, discuss the subject as though the parties were dealing as strangers, and a contract of purchase exists between them. On behalf of plaintiff it is asserted that "whether defendant acted as the friend or agent,

or as

an independent purchaser at arms-length with plaintiff," the recovery ought to be sustained; that "an absolute, perfect, and complete contract of bargain and sale, with reference to plaintiff's interest, had been made and concluded between them;" and that the same was, "in fact and in law, a good, valid, and subsisting contract, interchangeably binding upon them." These propositions counsel for defendant dispute.

We deem it unnecessary to determine this particular controversy upon the evidence. The cause of action averred is grounded upon the relation of principal and agent. No such contract as this is pleaded in the complaint; but if it were, the denials in the answer are sufficient to put it in issue. There are proofs upon both sides of the issue thus made; and the instruction under consideration is no less defective. It nowhere calls upon the jury to find whether or not such a contract existed. If defendant was purchasing this property himself, though perhaps with a view to an immediate resale thereof to other parties, and if the arrangement by which he was to pay $18,000 therefor was entirely optional, so that, without legal liability, he might or might not, as he saw fit, consummate the transaction, it was his privilege to repudiate the price mentioned, and secure the property at a lower figure, provided, of course, that in so doing he perpetrated no such fraud as would, under the authorities, render him liable to an action. It is not every untruthful statement or false representation that will amount to such fraud. If the false statement is made in respect to a matter concerning which the purchaser is under no legal duty to the owner for the correctness of his declaration, and upon which the latter would be incautious to rely, it is regarded as gratis dictum, and cannot form the basis of an action. Thus it has been held that a buyer is not "liable for misrepresenting a seller's chance of sale, or probability of his getting a better price," or for falsely stating that his partners would not consent to his giving more than a certain sum." Kerr, Fraud & M. 87, citing Vernon v. Keys, 12 East,

637.

The alleged false representation in this case consists in the decla

« ZurückWeiter »