Morgan v. Child, Cole & Co.

128 P. 521, 41 Utah 562, 1912 Utah LEXIS 88

• Court: Utah Supreme Court
• Decided: September 30, 1912
• Docket: No. 2329
• Status: Published

Opinion

STEAUP, J.

In the complaint it is -alleged that the plaintiff and the defendant on the 3d day of June, 1908, entered into a written agreement, by the terms of which it was agreed that the plaintiff should furnish the defendant information “concerning the property known as the Sioux Consolidated Mining Company,” and that the defendant should purchase “about forty thousand shares of the capital stock of said company, or an investment of not to exceed $15,000,” and to equally divide the profits and share the loss. It is further alleged that the information referred to in the agreement consisted¹ of plaintiff’s knowledge that the “Sioux Consolidated' Mining Company had then discovered ore of profitable quality and quantity in its underground workings,” and that the plaintiff gave the defendant all the information possessed' by him on the subject and exhibited to it samples of ore taken from the workings; and that, in virtue of such information and of the agreement, the defendant on the 4th and 5th days of June, 1908, purchased 27,272 shares of the capital stock of the -company at an average price of fifty-five cents, or, in the aggregate, for $15,000. It is further, alleged that on the 4th •day of June, in consideration of a deposit by the plaintiff, a promissory note for $3000 executed by him with security and' delivered to the defendant to insure it against loss, the defendant agreed to hold one-half of the stock so purchased “subject to plaintiff’s order, or until the same reached' a price on the open market of $1.50, when it should sell the same and pay the plaintiff all the profits derived from the sale thereof;” that the plaintiff executed and delivered the note, which was accepted and retained by the defendant for the purpose mentioned; that on the 9th day of November the stock sold in the open market for $1.50 a share and upwards, and -continued to be sold at that price until the 17th day of November; and that on the 10th of that month the plaintiff directed tbe defendant to sell tbe shares of stock so beld by it for tbe plaintiff, and, bad bis directions been followed, tbe stock could have been sold in tbe open market for $1.65 a share, but that tbe defendant disobeyed tbe directions and failed to sell tbe stock, to plaintiff’s damage in tbe sum of $14,900. It is further alleged that between tbe time of tbe purchase of tbe stock and tbe 9th day of November the defendant received dividends on tbe stock so beld by it for plaintiff in tbe sum! of $2450, which tbe defendant refused to pay to tbe plaintiff. He therefore prayed judgment for these amounts and interest.

Tbe defendant filed an answer denying tbe material allegations of tbe complaint, and alleged that tbe contract sued on was ambiguous, uncertain, and without consideration; that its name was subscribed thereto without authority, and that tbe agreement was entered into by tbe plaintiff for tbe purpose of gambling in stocks and to defraud tbe public; that tbe plaintiff was not tbe real party in interest, and that there was a misjoinder of parties plaintiff and a non-joinder of parties defendant; and that tbe defendant, on its part, performed all tbe obligations of tbe agreement, and fully accounted to tbe plaintiff and paid him all that was due him.

Upon these issues tbe case was partially tried to tbe court and a jury. At tbe conclusion of plaintiff’s evidence, tbe court, on tbe defendant’s motion, granted a nonsuit on tbe ground that tbe contract, and the evidence adduced by the' plaintiff, show that be and tbe defendant were copartners in tbe transaction, and that an accounting between them was a prerequisite to the maintenance of an action, and “that the plaintiff bad no right to sue tbe defendant at law,” and bad “mistaken bis remedy if any be has.” A judgment of dismissal was thereupon entered, from which tbe plaintiff has prosecuted this appeal.

1 It is seen that tbe motion was granted and tbe action dismissed, not on tbe ground of insufficiency of evidence, but on tbe ground of a mistaken remedy. We think tbe trial court erred. In this, as in many other states in which tbe formal distinctions between actions at law and suits in. equity are abolished, tbe court may administer relief according to tbe nature of tbe cause set out, whether it is such as would be granted in equity or such as would be given at law. (3 Cyc. 737.) Our Constitution (section 19, art. 8) expressly provides that “there shall be but one form of civil action, and law and equity may be administered in the same action.” Volker-Scowcroft Lumber Co. v. Vance, 36 Utah, 348, 103 Pac. 970, 24 L. R. A. (N. S.) 321, Ann. Cas. 1912A, 124.)

2, 3 The respondent, however, in support of the ruling, also urges: (1) That the contract sued on is so ambiguous and uncertain as to render it unintelligible and unenforceable; that it on its face is against public policy and void, because, as urged, “it was conceived in and procured by fraud and was entered into to defraud1 the public,” and because it has all the characteristics of a gaming contract; and (2) that the evidence shows the contract to be of such character that it was made without authority on behalf of the defendant and without consideration; and that the evidence is insufficient to support the material allegations of the complaint. These were ground’s also specified in the motion.

We do not think the contract bad on the alleged ground of an incurable ambiguity, or that it, on its face, is, or was by the evidence conclusively shown to be, void as against public policy on the grounds urged. We. do not find any evidence to support the allegation that the defendant received any pon tion of the alleged dividends. But as to all other material allegations of the complaint we find some evidence tending to support them.

4 It may not be very convincing or satisfactory, and some of it may be, as it appears to be, conflicting; yet, when it is viewed in the light most favorable to the appellant, we think: a sufficient showing was made to entitle him to a trial om the merits. We see no good purpose to here abridge the evidence which we think tends to support, the allegations of the complaint, and hence deem it unnecessary to set it forth. It ought to suffice that from a reading of the record and a thoughtful consideration of the evidence the conclusion is readied' that the record discloses sufficient evidence tending to support the material allegations of the complaint, and that such alleged) facts, if so found, entitle the plaintiff to some relief. And, as already observed, the ease here terminated, not on grounds of insufficiency of evidence, but on a mistaken view as to remedy.

The judgment of the court below is therefore reversed, and the case remanded for a new trial. Costs to appellant.

' FEIGN, O. J., and' MeCAETY, J., concur.