Dale E. DRAKE and Shirley Drake, Plaintiffs and Respondents, v. Ernest SAMPLE and Carrie Sample, Defendants and Appellants.
No. 12159.
Supreme Court of South Dakota.
Decided June 7, 1979.
Rehearing Denied July 13, 1979.
279 N.W.2d 685
Argued April 13, 1978.
After drawing every reasonable inference possible in a manner supporting the determination of probable cause made by the magistrate, as we are required to do, State v. Wielgus, 278 N.W.2d 805 (S.D. 1979); and State v. Kaseman, 273 N.W.2d 716 (S.D.1978), we conclude that the information presented to the magistrate was not so stale that it vitiated the affidavit.
Appellant argues that the affidavit does not meet the two prongs of the test governing the sufficiency of affidavits for search warrants established by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
This court has previously held in State v. Roth, supra; State v. Gerber, 241 N.W.2d 720 (S.D.1976); and State v. Haron, supra, that information supplied by victims of a crime or by citizen-eyewitnesses is subjected to less rigorous examination than is information supplied by paid informants. In State v. Haron we said:
We agree with the holding in United States v. Bell, [457 F.2d 1231 (5th Cir. 1972)], that the strict requirements of Aguilar and Spinelli are limited to those cases in which the information in the affidavit has been supplied by an unnamed, unidentified informant and that where, as in the instant case, the information, or at least a greater part of it, has been supplied by the victim of the alleged crime or by identified eyewitnesses, the reliability of the information so supplied and the credibility of the informants are sufficiently established if on the face of the affidavit it appears that the named victim-eyewitness informants were in a position to have observed the matters related to the officer who submits the affidavit to the magistrate. 88 S.D. at 402, 220 N.W.2d at 832.
In the present case, Mr. Criger saw the radio being carried from the residence identified in the search warrant and was asked by the individual carrying the radio to sell it for whatever he could get for it. There is no suggestion in the record that Mr. Criger was anything but a citizen-eyewitness. Cf. State v. Roth, supra. There were no charges outstanding against him, nor was he under investigation by the police. Cf. State v. Wielgus, supra. There is nothing in the affidavit that would raise a question regarding his credibility.
We conclude that the search warrant was properly issued. Accordingly, the judgment of the trial court is affirmed.
All the Justices concur.
Dale E. Bradshaw of Loucks, Oviatt, Bradshaw, Green & Schulz, Watertown, for defendants and appellants.
This case involves an action brought by Dale and Shirley Drake for a declaratory judgment seeking a declaration of the rights of the parties under an alleged oral agreement, which was supported by written memoranda, with Ernest and Carrie Sample for the sale of real property. The Samples pled the statute of frauds and rescission prior to acceptance as defenses. The trial court found in favor of the Drakes and rendered a judgment accordingly. We affirm.
The real property that is the subject of this litigation is owned by the Samples and was leased to the Drakes in 1973. Sometime during 1973, the parties discussed the sale of the real property. This discussion arose out of an earlier negotiation between the Samples and a third party regarding the sale of the property. When negotiations with the third party were terminated, the Drakes and the Samples entered into an oral contract for the sale of the property under the same terms and conditions as those the Samples had offered to the third party. The terms and conditions of the agreement were that the property would be sold for $75 per acre for 375 acres on a contract for deed, a down payment of $5,000 would be made, annual payments would be $1,000, plus interest at 7% per annum, and there would be a prepayment privilege. The transaction was to be entered into after January 1, 1974, for tax purposes. The Drakes, who were already in possession as lessees, were to have possession under the contract for deed for the 1974 season and were to pay the 1974 and subsequent real estate taxes.
In an effort to reduce the oral agreement to writing, the parties went to some financial institutions seeking out forms upon which to transcribe their contract. When these forms proved to be unsatisfactory, Mr. Sample hired attorney Gordon Gunderson to reduce the agreement to writing. After several contracts were drafted, Mr. Gunderson was unable to reduce the agreement to writing to the satisfaction of the Samples. The difficulties were aggravated further because of the fact that the Samples spent the winter of 1973-74 in Texas. The Samples wrote letters to Mr. Gunderson and to the Drakes specifically referring to the contract for the sale of the property and embodying the exact terms agreed upon. Additionally, Mr. Sample made corrections on one of Mr. Gunderson‘s contract drafts and affixed his signature to the corrections. Upon their return from Texas in July of 1974, the Samples attempted to withdraw from their agreement to sell the property to the Drakes.
The trial court concluded that there was an oral agreement between the parties for the sale of the real property and that there were sufficient written memoranda evidencing the existence of a contract to satisfy the statute of frauds. Judgment was entered accordingly, and the Samples appeal from the judgment.
On our review of the appeal, the successful party is entitled to the benefits of his version of the evidence and of all inferences fairly deducible therefrom which are favorable to the judgment of the trial court. Mobridge Community Industries v. Toure, 1978, S.D., 273 N.W.2d 128; Cunningham v. Yankton Clinic, P. A., 1978, S.D., 262 N.W.2d 508. The findings of the trial court upon conflicting evidence are presumed to be correct, and we will not set such findings aside unless they are clearly erroneous.
After reading the record and with this standard of review in mind, we must come to the conclusion that the parties entered into an oral agreement for the sale and purchase of the real property in question during the spring and summer of 1973. The Samples agreed to sell their land to the Drakes on the same terms which had been
On the basis of these facts, the trial court found that there was an oral agreement between the parties for the purchase by the Drakes from the Samples of the real property involved in this litigation. There is nothing in the record which seriously contradicts the findings of the trial court in this regard, and we conclude that the trial court finding was not clearly erroneous.
Our statutes require that an agreement for the sale of real property is not enforceable unless the agreement or some memorandum thereof is in writing and subscribed by the party to be charged in an action to enforce the agreement.
The trial court found that there were sufficient written memoranda embodied in the third contract for deed revised by Mr. Sample and subscribed by him in his own handwriting, as well as in the letter dated January 29, 1974, handwritten and signed by Mrs. Sample to the Drakes, to render the oral agreement enforceable. This document and correspondence are sufficient to meet the requirements of our statute of some memorandum in writing subscribed by the party to be charged. We conclude that the trial court finding in this regard was not clearly erroneous.
In their brief, the Samples seem to attribute the delay in getting the oral agreement of the parties into writing to affirmative actions of the Drakes, whereas the record supports the contrary conclusion that the delay was the result of poor communication between the Samples and their own attorney. This communication problem has no effect on the oral agreement of the parties and the embodiment of the agreement in written memoranda. Additionally, the Samples confuse the existence of an executory contract for the sale of real property with the Drakes’ ability to perform—such as in tendering the down payment—according to the terms of that contract. Contrary to the view expressed by the Samples regarding the down payment, the only evidence in the record regarding performance is that the Drakes are ready and willing to perform the purchasers’ obligations under the contract and have tendered the down payment and continue to tender the down payment. The fact that the Samples perceived that the Drakes might have difficulty making the down payment does not affect the validity of the contract itself. The existence of the contract and the performance of the contract are separate considerations.
The judgment of the trial court is affirmed.
WOLLMAN, C. J., and HENDERSON and FOSHEIM, JJ., concur.
MORGAN, J., dissents.
I dissent.
The majority opinion gives too much credence to the trial court‘s findings, and overlooks what it failed to find! The trial court completely ignored the issue of conditional offer which was properly before it.* By affirming this decision we have effectively foreclosed anyone from requiring a written contract before they are to be bound, because I cannot conceive of any set of circumstances where a party could do more to indicate such intention than the Samples have in this case. This is a dangerous precedent to set on this record.
The trial court has rewritten the contract. There is nothing clearer in the record than that Samples wanted $5,000 down shortly after January 1, 1974, and the balance on payments with interest at seven percent from that date. First, Attorney Gunderson rather magnanimously decided that Drakes should have six months’ interest-free use of the land, and then the trial court gratuitously extended that to approximately three years in its decision of December 15, 1976.