12 S.D. 270 | S.D. | 1899
This is an action to recover money paid by the plaintiff on a land contract. Findings and judgment were in favor of the plaintiff, and from the judgment and order denying a new trial the defendant appeals. This case was before us on a former appeal, and the judgment reversed, and a new trial ordered. 8 S. D. 421, 66 N. W. 810.
The contract, entered into on the 15th day of September, 1888, provides in substance, that the appellant, Foster R. Clement, should sell and convey to the respondent, James W. Barnes, by deed of special warranty, 640 acres of farming land for the sum of $8,100, and interest thereon at the rate of 7 per cent, per annum, — principal and interest to be paid in installments on or before October 1st of the years 1889, 1890, 1891, 1892 and 1898, and taxes and insurance as therein stipulated, and permitted the said Barnes to occupy the land. Barnes covenanted that he would purchase the said property, and pay for the same as therein specified; that he would till the land in a farmer-like manner, and cultivate at least 400 acres of the same in crops; that he would keep all buildings on the premises insured; and that he would deliver to the said appellant each year a good and valid chattel mortgage upon all the crops grown on the said premises, to secure the payment of the installments of each year. It was further agreed between the parties that the occupancy of the premises by the respondent for the purpose of carrying out the provisions of the agreement should in no manner give the respondent the possession of, or the right of possession of, the said premises. The said contract also contained the further stipulation: “That, in case the said Barnes shall fail in the performance of any of the stipulations and agreements herein by him agreed to be done and
Ordinarily a party thus paying money upon a contract, who fails to comply with the terms of the same as to the time of payment, but who offers to pay the balance due subsequent to the time when such.payments should have been made, and such payment is refused, is entitled to recover back the money so
The appellant further contends that the court erred in finding that there was due the respondent any sum whatever from the appellant, for the reason that by the terms of the contract it was expressly stipulated and agreed between the parties all payments made, and all sums which said appellant should
It is contended on the part of the appellant that,' this court having held on the former appeal that the contract was not void in so far as it provided for a retention by appellant of the money that might be paid thereon, it necessarily follows that the respohdent is not entitled to recover any part of the sum so paid in this action, but we are of the opinion that such a conclusion is not warranted by the decision in that case. While that provision of the contract is not void, the contract is never-'