Shelton v. . Davis

Pearson, C. J. No one can read the record in this case-without being painfully impressed with the connection that, if it becomes a precedent, there will be an end to all certainty-in judicial proceedings. The complaint alleges that the-defendant, as the agent of plaintiff, sold a tract of land to* A, B and C, and to the defendant, he taking one-fourth for the price of $800, which he received and failed to pay over, and demands, judgment for $800, minus $325 paid. The answer admits that defendant at one time held a power of attorney to sell the land, but avers it was surrendered;, and afterwards, the plaintiff sold the land to A, B and C,, and the defendant, and executed a deed therefor, reciting a, *327 consideration of $800, the receipt of which sum is acknowledged in the deed, and goes into an explanation to the effect that defendant by joining with A, B and C, effected a sale to them and himself at the rate of $1 per acre, received of them $327, which he paid to plaintiff, and thereupon plaintiff executed a deed to A, B and C and the defendant, setting out $800 as the consideration, which was done to enable A, B and C to resell at an advantage. The answer then avers by way of further explanation than when the deed was executed the plaintiff and the defendant had a private understanding that defendant was to pay nothing, but was to reconvey to the plaintiff one-fourth of the land, and was to be paid commissions for having effected a sale to A, B and C of the other three-fourths. The jury on the ruling of his Honor that the alleged agreement that defendant was to pay nothing, but was to reconvey one-fourth of the land was void under the Statute of Frauds, (not being in writing) find that the defendant owes the plaintiff twenty-five cents an acre for the land conveyed, amounting to $162.40, treating him as a purchaser with A, B and C at the rate of one dollar per acre. So we have a case when the complaint is passed over as amounting to nothing, and the plaintiff has judgment on a part of the answer, the other part being held void on the Statute of Frauds. Without this explanation taken from the statement of the case, no one could understand how it happened that a plaintiff on a demand of judgment against the defendant as agent for $800 received by him should have a judgment for one-fourth of the value of the land at one dollar per acre. Very certainly should the plaintiff bring another action for .the $800 received by the defendant as his agent; the plea of “ former judgment for the same cause of action ” would be of no avail without a vast deal of explanatory matter. The very interesting questions agreed at the bar are not *328 presented by the case, for we have not a vendor who has executed a deed, calling upon the vendee for the price, but we have a supposed vendee, alleging' a private verbal agreement by which he was to reconvey his part and pay nothing. We will not decide whether this case comes under the Statute of Frauds, or whether the defendant is not concluded by the rule, “ a man must come into Court with clean hands,” for the idea of giving the plaintiff judgment upon a state of facts not alleged in the complaint and entirely inconsistent with it, whatever may be said in regard to the progress of the age, and the liberal and enlarged views of C. C. P., is a proposition which no member of this Court can for a moment entertain. The plaintiff before or during the progress of the trial ought to have made “ issues of fact,” or requested the Judge to direct the jury to make a special finding, so as to enable him to move to amend the pleading to make it conform to the facts found. Under C. C. P., secs. 128, 129, 132, a plaintiff may sue for a horse and recover a cow (which Blackstone treats as an absurdity) ; but in order to this when the variance appears, the plaintiff must obtain leave to amend by striking out “horse” and inserting “ cow,” or else the jury must find the facts specially, or the case must be submitted to the jury “ on issues,” so that the pleading may be amended and be made to conform to the facts proved on such terms as the Judge may deem proper “ unless the amendment effects the merits and substantially changes the claim or defense.” Should his Honor think it proper to allow the necessary amendments so as to let the complaint be for one-fourth of the price of the land at one dollar per acre and judgment accordingly for $162.40, the case will then be in a condition to be brought up to this Court by appeal for a review of the ruling as .to the Statute of Frauds, otherwise judgment must be arrested, and the plaintiff left to bring another *329 action if so advised. The question will then be, can the plaintiff have judgment on a part of a verbal agreement, and exclude the other part of it ? Error. Per Curiam. Judgment reversed.