21 S.D. 337 | S.D. | 1907
Appellant here seeks the reversal of a decree in equity requiring him to execute and deliver a warranty deed to respondent, conveying certain improved residence property in the city of Huron, pursuant to an oral agreement which the court found respondent had duly executed. ,
As the findings of fact amply sustain the conclusion reached, the sufficiency of the evidence to justify such findings is the important question to be determined on this appeal from the judgment and order overruling a motion for a new trial. There was testimony to show that the parties had long been near and amicable neighbors, and. that immediately prior to the transaction in question respondent sold his residence property to a railroad company for right of way purposes, and had reserved a house and large barn situated thereon, which he was obliged to remove to some other location within a short time. Being fully aware of this fact and that'respondent, who was engaged in the drayage business, had no lots upon which to place such buildings, appellant went to- respondent’s barn on the morning- of April 28, ioo^;, and opened negotiations for the sale of his property, by stating in effect that his business was rather poor, and his wife and children in ill health, and that he wanted to sell out, and would do- so at a price low enough to be exceedingly attractive. He then took respondent to examine his property, consisting of four lots upon which a house was situated, and there offered to sell the same for $2,800. To show what then occurred, we quote from the testimony of respondent, who addressed himself to appellant in part as follows: “I am figuring on another piece of property, and if I drop this other and can decide to take this,'will there be any certainty this will be all right? He says: “My word is as good as your money, and, if I was dealing with you, I would consider the same way. You go ahead and figure the matter over and malee up vour mind what you want to do-. You can talk with my wife or phone.’ And I said it was all right, so- we didn’t have any misunderstanding, so we
Concerning what thereafter accurred, respondent testified as follows: “I kept the key and moved into the house after that, on the 8th day of May. I think it was on Monday, the following Monday from the 5th. The 5th was Friiday, I think. On the fol
Though the contract was not in writing, it is maintained by counsel for respondent that the facts and circumstances bring the case within the exception to - the statute of frauds contained in section 1311 of the Revised Civil Code, which reads as follows: “No agreement for the sale of real property, or of an interest therein, is valid unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to- be charged,
As such facts and circustances bring the case within, the statutory exception above quoted, and justify a court of equity in decreeing specific performance, the judgment appealed from is affirmed.