24 S.D. 257 | S.D. | 1909
It appears from the evidence in this case that on the 18th day of September, 1901, a certain written contract was made by and between W. H. H. Phillips and Edward C. 'Phillips, the defendants, as parties of the first part, and Horace S’. Speer, the plaintiff, as party of the second part, wherein and whereby the defendants, as parties of the first part, agreed to sell to the plaintiff the N. W. % of section 7, township 109, range 49, in Brookings comity, S. D., containing 160 acres, and that plaintiff, as said party of the second part, thereby covenanted and agreed to pay to the said defendants a warranty deed, free of all incumbrances, of certain lands situated in Cherry county, Neb., and also the sum of $4,200 in manner following, to wit: The sum of $500 due at or before the execution of this contract; the sum of $300 on or before the 1st day of March, 1903; the sum of $300 on 'or before the 1st day of March, 1904; the sum of $500 on or before the 1st day of March, 1905; the sum of $500 on or before the i:st day of March, 1906; and a first mortgag-e on said land of $2,100 on or before the 1st day of March, 1906, with interest on the balance until paid at the rate.of 6 per cent, per annum, payable on October 1st annually, on the whole sum remaining from time to- time unpaid, and to pay all taxes, assessments, and impositions that may be legally levied or imposed on the said land subsequent to the year 1901. The said contract also further provided that in case of the failure of the said party of the second part, this plaintiff, to make either of the payments, or interest thereon,"or any part thereof, or perform any of the covenants on his part hereby made and entered into, then the whole of said payments and interest shall become immediately clue and payable, and this contract shall at the option of the parties of the first part, the defendants, be forfeited and determined, and, if this agreement shall have been recorded in any register of deeds or recorder’s office, then the filing of a declaration of forfeiture, setting forth the fact of such forfeiture, in said office by said first parties, shall.be sufficient to cancel all obligations hereunto on the part of the first parties, and fully reinvest -them with all right, .title, and interest hereby agreed to be conveyed, and the party of the second part shall forfeit all pay
The defendants admitted the making of the contract as hereinbefore stated. The defendants denied that the Nebraska land was a part of the consideration for the sale of the lands owned by defendants, and alleged that the Nebraska lands went to the agents of plaintiff as commissions for purchasing said lands for him, and that defendants had nothing whatever to do with the Nebraska lands in the transaction. In the first place, it will be observed that the contract which the defendants admitted they made says that the Nebraska land is a part of the consideration 'for the Phillips land. No other reasonable construction can be placed thereon. The plaintiff agreed to pay the Nebraska land and the $4,200 for Phillips land. The Nebraska land was as much a part of the consideration as the $4,200. The defendants could as well have .said that the $4,200 was not a part of the consideration. Without some claim or allegation of fraud 01-mistake in the making of said contract whereby the same might be reformed, the same could not be varied by such testimony, and the defendants would not be permitted to repudiate otherwise the terms of the contract; and the defendants by their answer and by cross-examination of plaintiff brought into the trial of this case an immaterial issue, so that whatever error, if any, crept into the trial of this case by reason of the question as to whether or not the Nebraska land was commission paid by plaintiff to his agent, or was a part of the consideration for the Phillips land under the contract, was upon the invitation of defendants, and of which defendants now have mo right to complain. All the evidence in relation to this question was at variance with the admitted terms of the contract. The objections of plaintiff made to. the introduction of evidence of this character on the ground that it sought to vary the terms of the contract and was
A great number of errors are alleged to have been committed by the court in the reception of certain evidence tending to show that no declaration of forfeiture was ever made and filed by defendants, or that no notice of intention by defendants to forfeit the contract was ever given to plaintiff, on the ground that such evidence was immaterial, and not relevent to the issue. But we are of the opinion that appellant’s proposition is not tenable in this respect. In Keator v. Ferguson, 20 S. D. 473, 107 N. W. 678, a case where the vendee of real estate sought specific performance against the vendor, this court in rendering decision said: “It seems eminently just and equitable that the party who has neglected to enforce the provisions of his contract providing that time shall be of the essence of the contract at the time the default is made, and accepts performance of the terms thereafter, should not be allowed upon a subsequent default to enforce the provisions without giving the other party notice that he intends to enforce the same and a reasonable opportunity to comply with the terms of the contract. To hold otherwise would enable a party to take undue advantage of his contract by accepting payments after the time they were to be paid by the strict terms, and, after having induced a party to make a number of payments, then .without notice and without giving the party an opportunity to comply with the terms of the contract declare it terminated, and the amount thereunder to be forfeited. In the case now before us the defendant had received $400 of her principal and certain improvements had been made upon the property. She had permitted plaintiff to believe at least that she would not insist upon strict performance with the contract by receiving the sum of $222 some 12 or 13 days after the same was claimed by her to be due, without objection, and had permitted the rent for the year 1900 to remain unpaid apparently without objection, and by waiting until the 4th day mf October, 13 days after she claimed the payment to be due, before notifying the plaintiff of her eléc
Binding no error in the record, the judgment of the circuit court and order denying a new tral are affirmed.