15 S.D. 159 | S.D. | 1901
Before the commencement of this action to enforce performance of a contract to sell real estate, plaintiff tendered the full amount alleged to be due according to an account stated, and demanded a deed. Judgment was entered on findings of fact and conclusions of law favorable to plaintiff, and the defendants appeal.
It is admitted that on the 13th day of January, 1891, respondent and John S. Proctor, since deceased, entered into a valid contract by the terms of which the latter bound himself to convey to the former the land in controversy in consideration of 20,000 bushels of wheat, the delivery of not less than 3,000 bushels of which was to be made, respectively, on the 1st day of 'October, 1892, 1893, 1894, 1895, 1896, 1897, 1898. “And in default of said yearly payments and deliveries of said three thousand bushels of wheat on said days of payment and delivery as aforesaid,- should said party of the first
October 8, 1896.
Balance of deferred payments.........................$2,348.75
Accrued interest to date...................'........... 784.62
Total ...................'.......................'$3,*33-37
Contract) between John S. Proctor and W. C. Krueger.”
While this memorandum was neither submitted to nor signed by Mr. Proctor, it is shown to be a summary of a settlement concerning which Mr. Proctor at the time expressed entire satisfaction. Treating the subject now under consideration and in support of the proposition that “the strong presumption is that the parties included in a settlement all the items each has against the other, that are due,
While it does not affirmatively appear that the wife of respondent was present at the time the settlement was made, the ruling of the court in sustaining an objection to appellants’ offer to prove by her that the amount due was figured by the parties in a matin tr noi in accordance with the contract is assigned as error. Section 5260 of the Compiled Laws expressly provides that a wife cannot be jsed as a- witness either for or against her husband, without his consent, and there is no merit in the contention.
The action of the trial court with reference to this case is sustained both upon principle and authority, and the judgment appealed from is affirmed.