23 S.D. 632 | S.D. | 1909
This is an action brought by plaintiff, who is appellant, against T. A. Harding et al., defendants, for specific performance of a certain written contract alleged in the complaint to have been executed by Kelley’s Rand Agency, as the duly authorized agent for T. A. Harding, party of the first part, and J. G. Purkey, party of the second part, whereby the defendant Harding purported to sell to plaintiff certain therein prescribed real estate situated in Beadle county on certain therein specified terms and conditions. The. defendant Harding answered, denying that he had ever authorized the said Kelley’s Rand Agency to execute the said contract on his behalf. On the trial the plaintiff offered in evidence the original of said contract, which was objected to by defendant Harding on the ground the same was. incompetent and not binding on defendant; it not being shown that the Kelley’s Rand Agency was authorized, in writing to make said contract, and it not being shown that defendant Harding ever agreed to the terms or conditions of said contract. The court sustained the objection, and to which ruling the plaintiff duly excepted. At the conclusion of plaintiff’s evidence, the court on motion made findings in favor of defendants that the said Kelley’s Rand Agency was not authorized in writing to execute the said contract for and on behalf of defendant Harding, and rendered judgment dismissing plaintiff’s complaint on the merits, and to which- findings and judgment the plaintiff duly excepted. Plaintiff brings this appeal, alleging a number of errors, but under the view we take of the case it will not be necessary to discuss other than as hereafter appears.
The plaintiff contends that the trial court erred in sustaining defendants’ objection to the introduction in evidence of the contract in question. The whole gist of this action turns upun the in
The plaintiff contends that defendant Harding by sending his deed and the abstract of title to the bank at Huron to be delivered to the Kelley Land Agency upon the payment of the purchase price constituted a ratification of the contract in question, but as we view the pleadings in this case, the question of the ratification of this contract is not in issue. Where a plaintiff would rely for his cause of action upon the ratification of an unauthorized contract it would be necessary for such plaintiff to fully plead and set out in his complaint all the facts necessary to constitute such ratification in order that defendant might properly answer thereto. In our opinion neither the complaint nor the evidence is sufficient to show anything that would constitute a ratification of an unauthorized contract for the sale of real estate.
Finding no error in the record, the judgment of the lower court is affirmed.