8 S.D. 421 | S.D. | 1896
Lead Opinion
To the complaint herein, which states a cause of action for money had and received by defendant on the 15th day of September, 1891, to and for the use and benefit of plaintiff, the defendant interposed an answer which amounts to a general denial. There being no valid objection to the introduction of evidence, the parties, without amended pleadings, were allowed to establish the following state of facts: On the 15th day of September, 1888, they entered into a written agreement, of which time was expressly declared to be of the essence, and by which the defendant agreed to sell plaintiff a 640-acre farm for $8,100, payable in annual installments, October 1, 1889, 1890,1891, 1892 and 1893. While plaintiff had permission to cultivate the land and occupy the premises for the purpose of carrying out his contract, it was mutually agreed that both the possession and the right to possession should at all times be and remain in the defendant. Each year, during the life of the contract, plaintiff was to cultivate and crop at least 400 acres of the land in a workmanlike manner, and to execute annually, and deliver to defendant, a chattel mortgage upon all crops grown thereon, to secure the payment of the amount due in October of each year, according to the terms of said contract. Plaintiff further bound himself to keep the buildings insured in the sum of $2,300 for the benefit of the defendant; to pay all taxes due or that might become due during the life of the contract; to keep the fences, buildings, and other improvements at all. times in good repair and condition; to permit no waste or cutting of timber; and to keep said land at all times free from wild mustard and other weeds or growth which might be injurious to the land; ‘ ‘that in case said Barnes shall fail in performance of any of the stipulations and agreements. herein by him
While it is clear, from the undisputed evidence offered under the complaint in this action, that plaintiff never actually paid defendant any money by virtue of the contract, the jury was reasonably justified in finding that wheat grown upon the premises, of the value of $2,600 over and above the amount of money which the defendant had advanced to plaintiff during the life of the contract for the purpose of paying current expenses, had at different times been delivered to and received by the defendant. Upon a verdict practically directed against the defendant, in plaintiff’s favor, for $2,971.91, including interest, judgment was entered, and the defendant appeals. While there is nothing in the record to disclose the theory upon which the case was tried, and under which respondent, who had confessedly violated his contract in many particulars, was al
Concurrence Opinion
(Concurring,) There should be a reversal, but I do not concur in the reasons assigned in the foregoing opion-ion..