*1 22-34-2, fense, and SDCL allows damages to be
treble recovered a civil against
action one who has violated SDCL
22-34-1. fail,
Mayrose’s contention must of our decision in K E& Land and
Cattle, (S.D. Mayer, Inc. v.
1983). In that case we held that SDCL dependent upon
22-34-2 is SDCL basis;
which is without tort the multi
ple damages provision of SDCL 22-34-2 is
inapplicable when a defendant has not been
prosecuted under SDCL 22-34-1. case,
present Mayrose admits there was no prosecution
criminal or conviction of Fend- Consequently,
rich for his acts. treble
damages cannot be awarded under SDCL
22-34-2; Mayrose entitled to the damages
actual awarded the trial court. is affirmed.
All the Justices concur. DOUGHERTY,
Richard E. Plaintiff Appellee, Henry
Patrick J. BECKMAN and
Carlson, Partnership, B & C d/b/a Appellants.
Defendants and
Nos. 14026.
Supreme Court of South Dakota.
Considered on Briefs Oct. 1983. April
Decided
Rehearing Denied June *2 plaintiff. defendants for Construction 3, 1981, completed plaintiff pay
tendered defendants as full ment for thei townhouse. Defendants re Plaintiff filed a turned the tender. com 1, 1981, asking perma plaint July on for a enjoining injunction nent defendants from disposing except through of townhouse warranty during penden- to him deed cy requested of the action. Plaintiff an spеcific performance ordering order for de convey plain property fendants to real $172,739. exchange tiff in for Defendants counterclaimed, asking that the contract parties between the be rescinded and that defendants be awarded interest on the money they had used to build the town alternative, In the plaintiff required asked that be $202,195.93, plus interest thereon from 17, 1981, April granted specific if the court performance. trial,
After the court decided that complete pur- tiff allowed to should be $196,- chase of the townhouse for total of plaintiff paid It found total of $28,400 and tendered an additional amount $144,339, totaling The court that the tender was found refused and money plaintiff returned to on June 1981. The trial court held that this tender stopped interest on this amount from 12, 1981, June but interest on the difference of should be payment, June to the date of final payment and that total would be a condi- precedent requirement specif- tion performance. provided ic court also required make that failure to specified within a time would constitute a Burke, Falls, John Sioux and would forfeiture terminate interest appellee. under the or other- wise. Boyce, Murphy, E.
James McMahon of Greenfield, Falls, McDowell & Sioux plaintiff paid After the trial to defend- appellants. defendants and $200,995, pur- ants which was the Court’s $196,400, price plus chase interest on BERNDT, Judge. Circuit purchase price from June payment. to date of The defendants CASE HISTORY conveyed property plaintiff. De- appeal disagreement This action arose from a fendants then filed a notice of of a filed a notice of review. The de- over townhouse constructed accept agreed to the terms of the appealed the issue of wheth- fendants denying them 27th letter. Defendant Beckman noted this the trial court erred er $172,- acceptance copy recovery interest on on the bottom his Plaintiffs notice of review asked defendant Carlson’s letter. purchase price to review set Court Plaintiff made even more revisions to the specific performance. trial court for plan July for the townhouse on *3 1980, 14, addition, and 1980. In October FACTS wife, requested plaintiff, or his that numer- in executed 1977 with In a contract extras All ous be added townhouse. tiff, agreed to construct town- in of these items were included the town- Falls, Dakota, “to be in South house Sioux completed ready house when it was and finished, specifications and according to occuрancy April 1981. Several dates The plans, designated as Plan No. 9-19.” finalizing property the transfer of the $142,000. upon purchase price agreed by plaintiff were set cancelled for one in- that no extras are The contract states reason or another. Defendant Beckman they are price in the unless cluded contract рlaintiff finally onmet to only extras in the contract. The set forth close the transaction. Plaintiff refused to included in the townhouse to be $202,195.93 pay by demanded defend- for, in an Adden- were set forth contracted but, completed townhouse in- ants for to the contract. dum stead, $172,739 full offered defendants as plaintiff hired architect years Two later payment. Plaintiff’s offer was refused and incorporate changes he Ward Whitwam to money all the he had to defendants plan. original to floor wished to make was returned to him on June January, made addition- Whitwam changes plan in the floor of the town- al DISCUSSION major These revisions included requiring are: The two issues resolution adding changes, such as an addi- structural (1) price The of the townhouse percent partitions, tional 12 in interior wall The interest award areas, framing in requiring double some adding square an additional 112 feet of The Price the Townhouse area, finishing
living off the entire base- and, area, adding ment additional windows the central Plaintiff’s brief concedes that finally, adding sliding additional doors. сase the amount owed issue is for the construction plaintiff to defendants willing Defendants were not to construct dispute is whether the major The work. major with these revisions townhouse $142,000 figure delineated the contract original price for the stated in the contract. $162,500 sum, binding or whether the as therefore, Carlson, wrote a let- Defendant letter, quоted February in the 27th controls (the February ter to on held that this case. The trial court letter), telling plaintiff that February 27th sum was correct. latter they construct the townhouse ac- cording plans and informa- to the revised provides guidance. piv- The contract $180,000. they tion had as of that date for language is: otal alternative, told In the defendаnt Carlson property undersigned, as Which willing plaintiff that defendants would be owner, day agent for the has this sold to plaintiff’s deposit to return buyer ... for the sum architectural fees he had incurred. price are the fol- Included in the above forth) letter, (none, lowing if not set extras:
Pursuant to defendant Carlson’s ceiling price of the meeting attorney Burke's will be the was held at John # comparable purpose meeting selling price home. If office. The plan price is less—the will be ad- discuss defendant letter of Feb- Carlson’s accordingly. Any changes minor ruary apparently justed 1980. Plaintiff fore, $162,500, court, price in the the trial
will be included
home—but
as found
changes could effect
large
propеr
price.
structural
is a
base
price of the home.
[sic]
dispute
The core
as to the amount
began construc
After defendants
suit,
due in this
surrounded the base
tion,
upon
substantial revi
insisted
—$142,000versus
The costs to
greatly
increased the cost of
sions
basement,
extras,
as well as the
finish the
Thereafter, defendants sent
construction.
Therefore,
dispute.
are not
the trial
advising
27th letter
that
$196,400 justified.
award of
For
court’s
willing
complete your
are
town
“[w]e
this court to reverse the trial court’s find
De
house for the sum of
...”.
ings,
they
this court must find that
were
plaintiff adopted
fendants contend
this
15-6-52(a);
clearly erroneous. SDCL
Reif
or,
figure
in the
letter and its
Smith,
(S.D.1982).
alternative,
the contractual caveat of
review,
Upon
the evidence and inferences
*4
“large
changes
effecting]
structural
...
therefrom
viewed in a
must be
most
price” justifies
applying
not
[sic]
and,
uphold
favorable to
the verdict
if there
$142,000 price.
original
either the
Under
competent
and substantial evidence to
letter,
February 27th
contract or the
de
verdict,
support
upheld.*
it must be
higher
аppear entitled to the
sum
fendants
contract,
($162,500). Considering first the
Pre-Judgment Interest
included as
it is crucial that defendants
A related issue is the amount now due
that, along
part
agreement
of the
with a
pre-judgment
the defendants for
interest.
$142,000 price tag,
“large structural
empowering
statute for
changes could effect
of the
[sic]
21-1-11,
provides:
which
intеrest is SDCL
home.” Whatever the full breadth of the
Every person who is entitled to recover
be,
phrase “large
changes” may
structural
certain,
damages
capable
being
or
certainly
it would
seem to embrace the
calculation,
by
made certain
and the
original
substantial revisions to the
right to
which is
in him
recover
vested
plan plaintiff dеmanded. Plaintiffs con
upon particular day,
is entitled also to
language
pre
sent to the contractual
now
$142,-
day,
recover interest thereon from that
any
reading
cludes
letter
black
except during
Therefore,
such time as the debtor is
the trial court’s decision to
law,
prevented by
by
or
the act of the
higher figure
award the
corrеct.
creditor,
paying
the debt.
Regardless
ap
America,
Corp.
v.
Beka
Lithium
pears
plaintiff adopted
that
77 S.D.
92 N.W.2d
we
$162,500).
(and
27th letter
its offer of
interpreted this statute and held:
ample
There is
evidence in the record that
plaintiff adopted
$162,500price propos
disputed
The mere fact that the claim is
Further,
began
al.
defendants
construc
does not defeat the allowance of interest.
Halloran,
tion of the townhouse
this letter was
Corcoran v.
20 S.D.
after
acknowledged by plaintiff.
applied
received and
210. As
N.W.
to this case our
If
objected
price,
by
statute
construed
this court in
he should
Hyde,
have insisted that defendants
Gearhart v.
39 S.D.
164 N.W.
objection,
cease construction. Absent such
58. The rule announced in that case is
damages
cannot now be heard that he did
that interest is
if
allowable on
higher figure.
reasonably
not consent to the
There-
there exists established or
as-
*
considering
by
plaintiff's
We
this issue
review could lead
a denial
reached
or reduction of
argue
Sommerfeld,
notice of review. Defendаnts
that
Siedenburg
such benefits.
right
appeal
by pay-
tiff
(1958).
waived his
the issue
Had this court
$200,995,
ing
pursuant
to the trial
contention, however,
agreed
plaintiff's
with
judgment.
Voluntary
disagree.
court
ceptance
We
ac-
price of the townhouse would have decreased
judgment
of the benefits of a
waives
thereby
and his benefit
have
would
increased.
right
only
tо review
in those cases where the
(if
prices
market
or values of
or
certainable
under the law he is entitled to
subject
by
any
matter
reference
to which
other instrument of discharge, such
lien)
may
discharge
the amount due
be determined
as a
he is entitled to
computation.
receive
discharge
a written
to the extent
paid;
cаse,
of the amount
this
if
Engineering
See also Northwestern
Co. v.
the sum tendered had been tendered
Inc.,
Enterprises,
Thunderbolt
whatever,
without
conditions
the lien
(S.D.1981).
N.W.2d
(if
destroyed
have been
it had been
The trial court held that the amount of
tendered with the
condition
owed defendants for
plaintiff deliver a satisfaction of said lien
capable
construсtion of the townhouse was
tendered,
in the sum of the amount
such
being
made
certain
calculation. The
lien would
destroyed).
have been
But
court,
pre-
awarded defendants
party
under the Civil Code the
has no
$23,661,
judgment
interest on
the differ-
right, any more than he would have had
plaintiffs
ence between the
law,
under the common
when tendering a
tender of
The court held that
payment,
require
receipt
in full or a
plaintiff’s
stopped pre-
tender of
lien, or,
satisfaction
full of the
in other
accruing
interest from
on that
words,
party
when one
honestly
claim-
amount,
on the basis of SDCL
ing greater
to be due than the
amount
provides:
party concedes,
other
he
put
cannot be
perform-
An offer of
or other
position
losing
the risk of
his
ance,
made,
duly
though the title to the
lien,
only upon
disputed claim,
not
*5
thing offered be not transferred to the
upon
undisputed part,
but also
the
creditor, stops
running
the
of interest on
failing to receive the smaller amount in
obligation,
the
and
the same
has
effect
full;
right
but he has the
to test
upon
performаnce
all the incidents as a
claim,
validity of his further
and the con-
thereof.
dition attached to the tender must be
plaintiff’s
Defendants contend that
such as to
him
leave
free to contest such
$172,739
tender of
was insufficient to toll
right.
period.
agree.
the interest
We
Pittsburgh
at
Plate Glass
As the (1) Circuit Cоurt of protects it the claimants from the Co., Uniroyal stated v. Bauer Tire that the surety risk stakeholder or its (8th Cir.1980): ...; F.2d will become insolvent stakeholder, prevents the who has no The South Supreme Dakota Court has fund, using claim to the the fund little opportunity interpret to section and, thus, becoming for his benefit un- 20-5-18 predecessors_ and its In or- justly expense enriched at the of the interest, stop der accruing to of claimants who have a inter- colorable tender must be an “unconditional tender” est in the fund[.] effectively deprives the stakehold- (Citations er of dominion over the fund. The unconditional tender herein left de- omitted.) deposit fendants free to check in the same manner as the check noteworthy It that the trial court did is deposited. Acceptance had been of the not find the tender was conditioned precluded tender would not have suit Indeed, any manner. the record does not the balance claimed due under the contract. disclose evidence of a condition and the distinguishable clearly case is thеrefore Let us take note that this was not a suit heavily upon by agreement promissory from the cases so relied on a or note lease majority. stipulated principal where the rental or the against clearly rate out. sum and interest were set a debtor who tendered the amount was This lawsuit is on contract which impact the crеditor claimed due.* The party’s so often claim revised that neither require therefore is decision to agreed due the trial as to amount with debtor on a peril to settle creditor’s term at final court’s determination. As I read the prejudgment paying interest on the en opinion, way majority a debtor can import statute, tire sum. The on the a successful tender when the sum make hand, permit other is the debtor to disputed, is to the full owed tender due, leaving such as he amount concedes is If this amount creditor’s demand. parties litigate only which is true, why did the in Pittsburgh courts Plate issue, due, the balance if any. Clearly the Glass, supra, Sav., supra, American Fed. opinion emasculates the statute. Eberle, suрra, the various wherein I affirm the of the trial than the amounts tendered were less court on issues. both claimed, agonize amounts creditors over conditional tender. It would issue simply have much easier to hold that been the tender less than the
because claimed, stop
amount it was insufficient prejudgment interest.
Looking at the issue in the cold rarely bring suit
reality, a creditor would * Hotel, during Widmann Smith that the tender rentals holdover it is merely ancillary N.W.2d obvious that lawsuit an issue. breaking building was centered on a lease on