The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1917-12-22
Saturday Erening Letter
BY Justice J. E.. Robinson

have made settlement with PLAINTIFF
at the time OF receiving the deed.
That was the time for him to settle
and to turn over to plaintiff his II
per cent paper, release the mortgages
and pay to him the balance. That Is
just what Newberry or any honest
banker would have done had he
bought the land at $2o an acre. The
jury believed. and had right to be-
lieve, the testimony Of the plaintiff In
regard to the price of the land and the
court had no right to order judgment
contrary to the verdict.
In March, 1915. the plaintiff COM
menced an ill-advised action against
Newberry. The complaint stated
facts to show that for long time
Newberry had been the banker and
advisor of the plaintiff and held a
large amount of securities against
him. that plaintiff had reposed conf
dence in NewJerry; that the deed was
obtained by undue influence and by
taking a grossly unfair advantage Of
the plaintiffs necessity and distress.
However the rescissiOn suit was a
mere blundcr. In any view Of the
case the deed to Newberry gave him
an absolute power to sell the land and
to account for the proceeds and under
that power he hal sold the land for
$3.50 an acre, Ganske, the purchaser.
was not made a party to the suit and
for that reason the court justly held
that it had no jurisdiction over
Ganske or his contract and dismissed
the action.
Then this action was commenced to
recover $1,440, the balance of the pur-
chase price and the jury found in IA
vor of the plaintiff. But counsel for
Newberry contends that by the false
action to rescind ;ne contract and
cancel the deed the plaintiff waived
the right. to an action to recover the
purchase price Of the land. And
strange to say that view appeals to
our judges. They say: This action
is brought for the purpose of recov.
ering the difference between the price
recited in the option of November 10
of So an acre and the price at which
the land was sold to Ganske, namely,
$3.50 an acre, which difference
amounts to sl,440. The complaint is
founded upon an alleged agreement
plaintiff for whatever sum was re-
ceived for the land in excess of $25 an
acre. Appellant contends that the
bringing of the RECESSION suit was not
an election of remedies and that 1t
does not preclude him from bringing
this action" Then the judges hold
that the action for rescissiOn OF the
contract is a bar to this action. I'm
der such a ruling if the plaintiff had
not received dollar for his land
suit to rcscind his deed would bar him
from ever recovering the price, T6I
me that seems perfectly absurd. 1nsl
deed itfseems shame to accuse our
judges Of making such decision
When an action to rcscind sale IS
dismissed, it is dead and buried and
it can serve no purpose except to bar
another action for the same identical
cause. There is no rule. or principle
of law that a vendor, Of land may
forfeit the price of the sale or any
| part of the price by false action or
| attempt to rescind the sale. An &C.
ton to rescin;l sale is an action In
| equity and is triable by the court or
Judge. and an action to recover the
price of land is an action to recover
money only, and II is triable by q
jury. Tho one Is not bar to tho
other. I, lpt this case 1t was no permits
sible to unite tile two causes of action
because they did not affect all the
necessary parties to the action. While
Ganske was necessary party to one
cause of action, he was no party to
the other cause.
Both of the actions in question were
commenced and prosecuted by McCue,
the ex-attorney general. He holds
a certificate from this court that he
may safely be trusted to practice law.
Now If McCue was SO unwise as to
forfeit $l,44O Of his clients money by
prosecuting an action to rcscind q
sale, some one should make good the
loss. If the judges gave McCue q
false certificate, it is for them to make
it good by paying the money or direct
ing McCue to pay it or to show cause
why he should not be disbarred for
INCOMPETENCE McCue neglected to
argue this case. He was too conf
dent. Now his duty is to move for
!, the rehearing and to set himself and
the Judges right or to pay the $1,440.