Hirsch v. Schlenker , 11 S.D. 289 ( 1898 )

Haney, J.

Plaintiff’s husband and defendant were co-partners, each owning an undivided half interest in certain realty which was occupied by the firm. Hirsh conveyed his interest to plaintiff, January 8, 1896. The co-partnership was dissolved by mutual consent, January 14, 1896, when defendant assumed the debts of the firm, and agreed to pay Hirsh $200 upon the delivery to him of a deed from plaintiff conveying an undivided half interest in the realty. Hirsch delivered the deed from his wife to defendant, who paid him $109, leaving a balance of $91. Hirsch died August 25, 1896. This action was subsequently instituted by the wife to recover the balance. At the close of the trial, plaintiff moved the court “to instruct the jury to return a verdict for the plaintiff, in this action, for the sum of $90, that being the amount asked for in the complaint, with interest thereon since the 14th day of January, 1896 for the reason that the evidence shows conclusively that there is this balance due the plaintiff on the purchase price of the lot in question. ” And defendant moved the court ‘ ‘to direct a verdict in favor of the defendant, for the reason that all the evidence in the case shows that Adam Schlenker is indebted to the estate of Philip Hirsch, who is dead in the sum of $93, and is not indebted to the plaintiff in this case in any sum whatever, and never has been, and there is absolutely no question of agency in the case.” Plaintiff’s -motion was sustained, a judgment was rendered in her favor, and defendant appealed.

Does the evidence show that defendant owes plaintiff $90, or does it show that he owes that ampunt to the estate of her husband? is the only question presented by these motions to the trial court, and the only question involved in the appeal. Plaintiff contends she sold the land through the agency of her husband and is entitled to the balance of the purchase price. Defendant contends that Hirsch was the real owner; that it was to Hirsch, not the wife, he promised to pay the $200; and that-it is to Hirsch’s estate that he is indebted. There is no evidence touching what occurred when the co-partnership was dissolved except the testimony of the defendant. It tends to prove that Hirsch was not acting as his wife’s agent. She was not present when 'the settlement was made. According to defendant’s testimony, the husband had been sued when he conveyed the property to the wife, and told defendant that he “turned the property over to his wife. ” Several witnesses testify to conversations with defendant wherein they claim he admitted owing plaintiff the sum sued for. Defendant denies or explains each of these conversations. One witness testifies, in rebuttal, he drew the deed from plaintiff to defendant, and that plaintiff, when she executed it, told her husband “to deliver this deed back to Mr. Schlenker, and bring back the money for the consideration as named in there, — $500.” This testimony was properly received, and if true, tended strongly to prove that Hirsch acted as the1 agent of his wife. Defendant knew that the record title was in the wife. The deed was in itself prima facie evidence of her right to the consideration for which it was sold. The trial court was, at least, justified in concluding that defendant dealt with an undisclosed principal, who, under the pleadings and proof in this action, was entitled to the verdict as directed, no attempt having been made by defendant to set off any claims which he might have set off against the plaintiff’s agent. Comp. Laws § 3995. The rule is, when both parties move for the direction of a verdict, and there is evidence to sustain the verdict as directed, the decision of the court will not be reversed. Church v. Foley, 10 S. D. 74, 71 N. W. 759. The judgment is affirmed.