186 N.W. 555 | S.D. | 1922
Plaintiff, the owner of a certain tract of real estate, entered into a contract with defendant Kaufman whereby, in consideration of $1,000 paid, the future payment of $5,000 and the giving of a note and mortgage for the balance of consideration, he covenanted and agreed to convey said land to Kaufman. Kaufman assigned said contract to the defendant Rardin. Subsequent to the date named in said contract for the payment of the $5,000 and giving of note and mortgage, plaintiff brought this action seeking to quiet title to the land, alleging ownership in himself, claim of title by the defendants under said contract, and that whatever rights defendants had had under such contract had been forfeited and terminated by their failure to comply with the terms thereof. Defendant Rardin answered, denying that he was in default, and, as a counterclaim, setting forth the contract; alleging that he had always 'been ready, able, and willing to comply with the terms thereof; setting forth facts which he alleged had prevented and excused his compliance therewith; and tendering performance. In this prayer for relief he asked for specific performance of the contract. To this answer a reply was interposed. When the cause was called for trial, defendant asked, and was allowed to amend his answer h}' withdrawing his tender of performance, and by changing his prayer for relief to one demanding judgment for the $1,000 that had been paid on the contract. This amendment was allowed; and plaintiff interposed) a demurrer. The demurrer was sustained; and defendant announced that he would stand upon his pleading. Kaufman was in default. Later on, and in the absence of Rardin’s counsel, the court received evidence in support of the complaint, and entered
"As both parties have failed to comply with their part of the agreement, and, as -we have seen, time being of the essence of the contract, the contract is at an end, the $900 remain in the hands of the defendant [plaintiff in present case] as money had and received from the plaintiff [defendant in this case], subject to be recovered by the plaintiff [defendant in- this: case].”
.The cause is remanded, with directions to the lower court to try out the issues, raised by the counterclaim, and, if such issues are found in favor of appellant, to modify its judgment by adding thereto a money judgment in favor of appellant.
■Costs shall be taxed in favor of appellant.