146 N.W. 596 | S.D. | 1914
John PI. Gingles, as executor, brought an action in the circuit court of Minnehaha county, against the Savings Bank of Hartford, and Frank and Annie Urban, to recover a portion of the sum of $300 held in escrow by the Savings Bank. The escrow was in connection with a transaction relating to purchase and sale of real estate. One Clark entered into a written contract with the defendants Frank and Annie Urban for a sale and exchange of certain lands in North Dakota owned by Gingles and son .to the Urbans, which contract was not signed by the Gingles, but was thereafter ratified and accepted ¡by them. Some difficulty arose in closing up the deal, but the sale was finally consummated and the North Dakota lands transferred to the defendant Annie N. Urban; the defendant Frank Urban paying the full consideration for the land, except the sum of $300 placed in escrow. Prior to the transfer of tire land, two matters of difference had arisen between the parties; on as to the exact number of acres in the tract, and the other as to the existence of a highway across the land. In. order to prevent delay in completing- the transfer, the parties entered into a collateral contract or agreement, under which $300 of the purchase price was to. be deposited in escrow with the defendant Saving's Bank, to be held and paid out by the bank, pursuant to the terms of the escrow agreement. Plaintiff, alleging that the terms of the agreement had been fully performed on his .part, demanded of the defendant bank the ¡sum of $265.20. The Urbans denied that plaintiff had carried out the contract, and for that reason alone the bank refused to pay over the money. Plaintiff sued both -the bank and the Urbans. A jury was waived and the case fried by the court. Findings, conclusions, and judgment were entered in favor of defendants. Plaintiff appeals.
At the trial plaintiff produced and offered in evidence a written instrument which was signed by plaintiff but not by defendants. This instrument is claimed by plaintiff to have been binding on both parties as a written contract; but, if not found •binding, plaintiff alleges it contained the substance of the
Appellant concedes that the evidence is conflicting, as to the terms of the escrow contract, but rests his appeal largely, if not wh-olty, upon the contention that the finding- -of ¡the -court as to the -oral contract is contrary to -the preponderance of the evidence. Appellant’s contention that the alleged written contract is binding upon the parties to the action will first be considered. If binding, the findings, conclusions, and judgment are erroneous. It is conceded that the instrument was never signed by the Urbans. Appellant contends that the Urbans -orally assented thereto, that plaintiff- thereafter acted upon and complied with the terms; of the contract, relying upon such oral as-sent, and that this makes the written contract ¡binding upon both parties. The Urbans, however, positively deny the alleged assent, and the finding of the trial court upon ¡this conflicting evidence was
The order and judgment of the trial court are therefore affirmed.