28 S.D. 577 | S.D. | 1912
This action was brought by the plaintiff and respondent to enforce specific performance of an alleged contract for the purchase and sale of certain lands in Spink county. In his original complaint, the plaintiff alleged an oral contract. This complaint having been demurred to, plaintiff asked and was granted leave to serve and file an amended complaint. In this amended complaint, he alleged a contract, without stating whether the same was oral or in writing. The plaintiff was required to make' his complaint more specific, and did so by alleging a contract' in writing, entered into on or about September 25, 1909. Defendant admitted the ownership of the premises, but denied the contract. The cause was tried to the court without a jury, findings and conclusions in favor of the plaintiff were made, a decree in conformity therewith entered, and it is from such decree or judgment that this appeal is taken. There being- no question raised as to the sufficiency of the assignments of error, or as to the sufficiency of the specifications, of the particulars wherein the evidence is claimed,to be insufficient to support the findings of fact, the cause is presented to us upon its merits.
The evidence offered and received was solely that offered by-plaintiff, and there is practically no conflict therein. A summary of such evidence and of the proceedings upon the trial is as follows :
Before offering- any writing, purporting to evidence the contract sued upon, plaintiff; over proper .objection as to its competency, testified in regard to a conversation had between himself and defendant in the fall of 1909, and prior to September 29th. He stated that defendant offered to sell him the land in question — there being 480 acres — at $35 per acre, and that after some conversation, wherein defendant insisted upon payment for 100 acres of plowing that had been done, defendant finally con
The only questions, as we view the case, are: Was there ever a contract, valid under the statute of frauds? If so, what were the terms thereof? Did the plaintiff ever comply with such terms?
Bearing in mind that there was no contract in existence at the time of the writing of the first letter, that at best there was merely an oral offer, not valid in law, and in no manner binding upon the defendant, and which could not have been made valid by an acceptance, either written or oral, we find plaintiff writing the letter of September 29th, which, in legal effect, was an offer to purchase this land at $35 per acre; the plowing to be thrown in.
All that we have said above is based upon the proposition that the evidence, oral and written, was properly received and considered. The trial court found that there was a written contract, and that under its terms plaintiff was to have not to exceed io years in which to make the deferred payments. As before noted, the evidence does not support such a finding. The trial court found that it was agreed that the papers were to be sent to the bank, and the deal was to be consummated there. Under the undisputed evidence, the papers were sent to the bank, as defendant’s agent, and there never was a time, so far as any evidence shows, when defendant did not have full right to recall the papers and require the deal to be closed direct with him. The trial court absolutely disregards and makes no finding upon one material part of the contract, namely, the payment for the plowing. That plaintiff was to pay for the plowing was an express condition insisted upon by defendant, and had to be complied with by plaintiff before he could demand deed. Plaintiff’s evidence as to any oral agreement concerning the plowing was improperly admitted, being incompetent for any purpose. Whether the undelivered deed and the letter written by the stenographer — or rather bookkeeper— were admissible in evidence would seem, under the authorities, very uncertain. Halsell v. Renfrow, supra, and notes in 50 L. Ed. 1033; notes, pp. 404-407 of 3 Ann. Cas.; Hickox v. Bacon, supra; Thomas v. Rogers, supra. We do not deem it best to pass upon this question at this time. It is, however, perfectly clear that the letters written by the attorneys were improperly received in evidence. There was no writing, signed by defendant, in any manner referring to such letters; in fact, no evidence, competent under the statute of frauds, showing that defendant ever became bound by the contents thereof.
It is clear that the judgment of the trial court was erroneous, and, further, that the plaintiff could not recover upon a new trial. The judgment of the trial court is reversed, and it is directed to enter a judgment, dismissing the complaint herein.