14 S.D. 537 | S.D. | 1901
This is an action by the plaintiffs to enforce the specific performance of a contract entered into by the defendant with Charles Rhodes, one of the plaintiffs, in which it is claimed said Rhodes was acting for and in behalf of all the plaintiffs. Findings and j'udgméñt were in favor óf the plaintiffs, and the defendant appeals.
It is contended on the part of the appellant that the court erred in construing the contract to constitute a purchase of the property, and that the contract is not a contract of purchase for want of mutual covenants, but is simply an option or unilateral contract, enforceable by one and not by the other, there being no agreement on the part of the plaintiffs to purchase, but only an agreement on the part of the defendant to sell for a specified amount within a speci fied time. Undoubtedly the appellant is correct in his contention that the contract set up is not one of sale and purchase, but simply an option to purchase within a specified time, and for a given price. But. assuming this to be the true construction of the contract, we fail to see in what respect the defendant will be benefitted. Section 3617, Comp. Laws, provides: “No agreement for the sale of real property, or of an interest therein, is valid unless the same, or some note or memorandum thereof, be in writing and subscribed by the
It is found by the court, and clearly sustained by the evidence, that $200 of the amount specified in the contract was paid to and accepted by the defendant; and it also clearly appears from the memorandum receipt of May 26th that the time was extended for the payment of the balance until June 7th. On June 7th the plaintiffs offered to pay the further sum of $90, and to pay the balance within a few days, but this proposition was declined by the defendant. But the court finds, and we think the evidence supports the finding, that the defendant did agree to give the plaintiffs until the following morning to make up the amount, and that the plaintiffs did on the following morning offer to pay the balance due on the contract. Under these findings we are of the opinion that the court was clearly right in holding that there was a substantial compliance with the contract by the plaintiffs within the extended time. The defendant, after giving plaintiffs to understand that he would accept the money in the morning, cannot in justice and equity, be permitted to now say that the full amount was not tendered on the 7th, for the presumption may be reasonably indulged in that, had not the plaintiffs
It is further contended on the part of the appellant that there was no consideration'for the extension of time to the 7th of June made on the 26th of May. But, as the agreement was in writing, a consideration is presumed, under the provisions of our statute. Section 3538, subd. 2, Comp. Laws, provides: “A written instrument is presumptive evidence of a consideration.” Subdivision 3 provides : “The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it.” There being no evidence upon this subject, the presumption of consideration must prevail.
It is further contended on the part of the appellant that the court erred in holding that the value of the use and occupation of the premises should be set off against the $100 balance due. But we are of the opinion that the court was right in so holding. There would seem to be no impropriety in settling the controversy as to the use and occupation of the premises in this action, and allowing plaintiffs the benefit of the same to the extent of the amount due.
Svereal errors have been assigned upon the admission and rejection of evidence, but after a careful examination of the same, we are of the opinion that there was no error committed on the part of the court, if any, of sufficient importance to require a reversal of this case. Finding no error in the record, the judgment of the court below is affirmed.