Defendants, owners of a ranch in Harding County, entered into a contract on March 20, 1951, with *456 plaintiff Frank D. Craig wherein they agreed to sell the ranch for $68,000 of which $1,500 was paid at the time of the execution of the contract and the purchaser agreed to pay the further sum of $1,500 on or before September 1, 1951, and to apply on the remainder of the purchase price and interest one-half the proceeds realized from the sale of crops raised on the property and one-half of the proceeds received from the sale of the increase of all livestock grazed thereon. The sellers agreed to furnish and deliver abstracts of title showing merchantable title and to execute and place a deed in escrow in the bank where payments were to be made. The contract provided that “if buyer shall fail or neglect to make the payments provided by this contract within thirty (30) days from the date when same shall become due and payable as hereinbefore provided, * * * then * * * this agreement shall forthwith cease and terminate and be and become null and void at the option of sellers and without notice and buyer shall and will deliver up and surrender to sellers possession of said above described real estate and the improvements thereon and all payments made under the terms of this contract shall be forfeited to sellers as liquidated damages.” On March 22, 1951, the purchaser Frank D. Craig assigned a one-half interest in the contract to plaintiff John W. Kowing.
The purchasers went into possession of the property. The deferred payment of $1,500 was not made on or before September 1, 1951, and the sellers commenced an action for strict foreclosure of the contract. That action was tried and judgment of dismissal entered April 25, 1952. The court made findings to the effect that the sellers had not performed their agreement to furnish abstracts of title; that they had failed to correct a situation with respect to certain buildings represented to have been on the premises described in the contract; and that the purchasers were entitled to possession of the premises. The sellers and defendants in the present action moved onto the ranch premises during the pendency of the strict foreclosure action and took possession. The buyers then commenced an action in forcible entry and detainer. Trial was had and judgment entered therein on May 14, 1952, decreeing that the sellers Carol and Roy Williams had no right to the possession of the ranch and' on that date *457 the present action was instituted wherein the purchasers claim damages for wrongful occupation of the premises. The action was tried to a j.ury resulting in a verdict in favor of the plaintiffs for the sum of $6,850. Judgment was entered thereon and defendant Carol Williams has appealed.
Plaintiffs introduced in evidence the judgment roll consisting of summons, complaint,- answer, findings and judgment in each of the former actions. Where a subsequent action between the same' parties or their privies is on a different cause of action the judgment in the former operates as an estoppel in respect to issues, claims or defenses actually litigated and determined. Keith v. Willers Truck Service,
Appellant asserts that the court erred in admitting over objection evidence of damages accruing and wrongful acts done after the commencement of the action; that recovery can embrace only loss already sustained unless there is a supplemental pleading. The gist of the complaint is that defendants forcibly and unlawfully entered into possession of the premises on or about November 1, 1951, ejecting and excluding the plaintiffs from the possession and use of the property. This action as we have stated was instituted on May 14, 1952. The basis of recovery is the loss of profits during the wrongful occupation and there appears to be1 no question whether or not this is the proper measure of recovery. Plaintiffs introduced evidence of loss of profits arising from the interruption of their right to plant crops and stock the ranch with sheep and cattle during the year 1952. SDC 37.1702 provides: “Damages may be awarded in a judicial proceeding for detriment resulting after the commencement thereof, or certain to result in the future.” This statute alters the rule under which damages were allowed only to the time of the commencement of an action. Peters v. Hoisington,
Appellant assigns as error the refusal of the court to permit her to testify that she consulted counsel and acting upon his advice honestly believed that she and her husband had a lawful right to take and retain possession of the ranch. Objection was made, not that such testimony was hearsay and without foundation as argued in the briefs, but that it was immaterial and not binding on the plaintiffs and not tending to prove a matter in issue. We limit our review to the scope of the objection. Under the provisions of SDC 37.1907, if a person is forcibly ejected or excluded from the possession of his real property, he may recover treble damages in an action against the wrongdoer. In Baldwin v. Bohl,
The remaining assignments of error complain of the refusal of the court to give requested instructions. Appellant requested the court to instruct the jury as follows: “No verdict can be rendered against either defendant for damages which are not definite and certain. You may not
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assess damage for any loss of claimed profits which is speculative, or uncertain, problematical, or remote.” The authorities recognize a distinction between uncertainty as to the cause or fact of damages and uncertainty as to the amount. See Annotation in
A number of instructions were requested by appellant concerning treble1 damages. It is not necessary to set out or discuss these instructions. We think that they were based on the erroneous theory that good faith constitutes under the provisions of SDC 37.1907 an element in a defense to forcible entry.
Appellant complains of the refusal of the court to give instructions to the effect that a person exposed to injury is under duty and obligation to minimize and lessen his loss. Matters in mitigation of damages constitute a defense and the burden of pleading and proving that damages would have been lessened by the exercise of reasonable diligence on the part of the plaintiffs was on defendants. Buell v. Greene,
The court refused an instruction that “In this state neither husband nor wife as such is answerable for the acts of the other. You may not assess damages against the defendant Carol Williams in this case, if you find the Plaintiffs suffered any damages for any acts of C. Roy Williams, unless you shall first find that C. Roy Williams acted with the knowledge, consent, permission and authority of Carol Williams.” This instruction was substantially covered by one given by the court. The instruction given so nearly in- *460 eluded the essentials of- -the' one refused that we cannot hold that the. refusal was materially prejudicial.
The judgment appealed from is affirmed.