161 N.W. 350 | S.D. | 1917
Plaintiffs and defendants entered into a contact whereby defendants agreed h> sell, and plaintiffs agreed to purchase, a house and certain lots in Rapid 'City, including the furniture and furnishings contained1 in said house. The consideration agreed on was $9,000; $1,000 was paid in cash, and plaintiffs were given possession of the property. The 'balance of $8,000 was to be paid at the end of one year, to-wit, on the 10th ■day of November, 1913. The contract provided that, if the said deferred payment was not made when due, said sum of $1,000 already paid, together with interest on the deferred payment and certain. sums plaintiffs were to expend for improvements on the property, should be forfeited h> defendants as liquidated damages; possession of the property was .to be restored' to defendants, and plaintiffs’ rights were to be terminated. Plaintiffs paid the in
By their answer, the defendants admitted the facte as above stated; and, by way of affirmative defense, alleged that the rental value of the premises during the time plaintiffs were in possession thereof was $150 per month; and further alleged that when the final payment became due plaintiffs not only failed, neglected, and refused to pay the same, or any part thereof, but represented to defendants that they were unable to pay the same, or any part thereof, and1 voluntarily surrendered the possession of said premises to defendants, and thereby terminated and abandoned the said contract and all their rights thereunder.
The trial court found as a fact that the rental value of the said property, during the time it was occupied by appellants, was $150 per month; that at the time the $8,000 payment became due the plaintiffs were wholly unable to pay the same; and that they never tendered said amount to respondents nor demanded a conveyance of the title to the said premises. The court further fo-und that the respondents were ,at all times, ready, able, and willing to convey to appellants' a title such as they contracted for, and that on or 'betumeen the 10th and 12th days of November, 1913, respondents executed and caused to be tendered to- appellants a proper conveyance of said premises on condition that appellants pay the balance due on the purchase price; that appel-r hints failed and refused to pay the same, or any part thereof. The court further found that on the 13th day of November, 1913, appellants informed respondents that they -were unable to pay the balance due on the purchase price of the property, and expressed their intention to- abandon said premises and surrender possession to respondents, and to terminate and relinquish- all their rights ■under the said contract; that appellants did, on the said 13th day of November, abandon -and1 surrender said! premises and terminate all their rights -under the said contract, and have, at no time, per
As grounds for a reversal of the judgment, appellants assign the insufficiency of the evidence -to sustain the findings of fact and errors of law on the part of the trial court in the admission of evidence :of the "value of the use and occupation of the premises involved during the time the same were occupied by the appellants.
Und'er these circumstance's, appellants were not entitled lo recover the amount that had been paid under the -terms of the contract, and the judgment'and- order appealed from are affirmed.