Minder & Jorgenson Land Co. v. Brustuen

CORSON, J. This is an appeal by the defendant from a judgment in favor of the plaintiff on its second cau-se of action alleged in the complaint, and from -the order denying a new trial. The facts and substance of the contracts entered into between the plaintiff and defendant and between the plaintiff and Priess Bros, are fully set forth in -the opinion in 24 S. D. 537, 124 N. W. 723, and in the decision on rehearing in 26 S. D. 38, 127 N. W. 546, in which tire former opinion of this court was reversed. .On rehearing, the majority of the court held that, by reason of certain transactions occurring between the defendant and the plaintiff and Priess Bros., the defendant was in effect substituted in place of the plaintiff, and that the contract thereby became in effect a contract between the defendant and Priess Bros., and further held that the evidence offered by the plaintiff to show paymnt of the $2,500 by the plaintiff should have been admitted in evidence, and that the evidence offered by the plaintiff as to the payment of the $2,500 by it to Priess Bros., at the request of the defendant, was erroneously excluded by the trial court, and that upon proof of the facts offered to be proved by the plaintiff said defendant could be held liable to the plaintiff for the amount so paid to Priess Bros. On the second trial, from which this appeal is taken by the defendant, the jury found, under the evidence, that the plaintiff did pay over to Priess Bros., at the request of the defendant, the said sum of $2,500, and judgment was thereupon entered upon the said second -cause of - action in favor of the plaintiff f or said sum. [1] The plaintiff’s second cause of action is very lengthy, and many matters are stated therein not necessary in an action to recover for money paid to a -third party at the request of the defendant, and consequently these unnecessary allegations must be considered as surplusage. That cause of action, however, eliminating the parts thereof not necessary to constitute a cause of action, states in effect, in our opinion, sufficient to entitle the plaintiff to recover in this action for the money advanced by it to Priess Bros, at defendant’s request. No useful purpose would be served by a reproduction of the evidence upon this branch of the case in [565] this opinion, and it will suffice to say that the evidence was clearly sufficient to support the verdict of the jury upon the said second cause of action. [2] It is contended by the defendant that he did not become liable for the payment of said sum, for the reason that the contracts introduced in evidence were not all in writing, but partly in writing and partly oral, and therefore void under the statute of frauds. It is insisted, however, on the part of the plaintiff that the statute of frauds is not involved in this case, so' far as it relates to the second cause of action, for the reason that that cause of action is for money paid by the -plaintiff at the request of the defendant. We are of the opinion that the plaintiff is right in its contention, as the payment of the $2,500 by the plaintiff to Priess Bros, was made by it upon the request of the defendant, and he is therefore liable for the said sum so paid -by the plaintiff, under the general principle that a party paying money at the request of another is entitled to recover the same in an action for the money so paid; and that the statute of frauds has no application to this branch of the case. We do not deem it necessary, therefore, in view of the fact that the advancement of the $2,500 by the plaintiff to Priess Bros, was made at the request of the defendant, to enter upon a discussion of the nature of the transaction as affected by the statute of frauds. The jury having found that the plaintiff did, at the request of the defendant, pay over to Priess Bros, the sum of $2,500, which they were fully authorized to do under the evidence, and substantially all the questions on this appeal having been discussed in the briefs of counsel on the former appeal and considered and decided in favor of the plaintiff by the court on rehearing, the judgment of the circuit court on this appeal, awarding the plaintiff the sum of $2,500 on its second cause of action, with accrued interest, must necessarily be affirmed. The judgment and order denying a new trial as to the second cause of action alleged in the complaint are affirmed. McCOY, P. J., took no part in this decision.