Barnes v. Clement

• Decision Date: 20 December 1899
• Citation: 81 N.W. 301,12 S.D. 270
• Parties: BARNES v. CLEMENT.
• Court: South Dakota Supreme Court

81 N.W. 301

12 S.D. 270

BARNES v. CLEMENT.

Supreme Court of South Dakota

December 20, 1899

Appeal from circuit court, Grant county; A. W. Campbell, Judge.

Action by James W. Barnes against Foster R. Clement to recover money paid on a land contract. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

H. H Potter and T. L. Bouck, for appellant. L. H. Bentley, George S. Rix, and J. H. McCoy, for respondent.

CORSON P. J.

This is an action to recover money paid by the plaintiff on a land contract. Findings and judgment were in favor of the plaintiff, and from the judgment and order denying a new trial the defendant appeals. This case was before us on a former appeal, and the judgment reversed, and a new trial ordered. 8 S.D. 421, 66 N.W. 810.

The contract, entered into on the 15th day of September, 1888 provides, in substance, that the appellant, Foster R Clement, should sell and convey to the respondent, James W Barnes, by deed of special warranty, 640 acres of farming land, for the sum of $8,100, and interest thereon at the rate of 7 per cent. per annum,--principal and interest to be paid in installments on or before October 1st of the years 1889, 1890, 1891, 1892, and 1893, and taxes and insurance as therein stipulated,--and permitted the said Barnes to occupy the land. Barnes covenanted that he would purchase the said property, and pay for the same as therein specified; that he would till the land in a farmer-like manner, and cultivate at least 400 acres of the same in crops; that he would keep all buildings on the premises insured; and that he would deliver to the said appellant each year a good and valid chattel mortgage upon all the crops grown on the said premises, to secure the payment of the installments of each year. It was further agreed between the parties that the occupancy of the premises by the respondent for the purpose of carrying out the provisions of the agreement should in no manner give the respondent the possession of, or the right of possession of, the said premises. The said contract also contained the further stipulation: "That, in case the said Barnes shall fail in the performance of any of the stipulations and agreements herein by him agreed to be done and performed, all payments which shall have been made, and all sums which said Clement shall realize out of any crops which may then be upon said lands, or upon which said Clement shall hold a chattel mortgage at time of such default, shall be retained by said Clement as payment for the use of said premises up to the time of such default, free and clear of any claim or demand of said Barnes whatsoever." Under this contract the respondent entered into the occupancy of the said land, and continued to occupy the same until November 21, 1891. As to what occurred between the parties under the contract, the court found as follows: "(2) That on the 21st day of November, 1891, the plaintiff being then in default in the payment of the moneys specified in and by the terms of the said contract, the defendant terminated the said contract, and ejected plaintiff from said lands described therein, and that since the 25th day of November, 1891, the performance of said contract has been abandoned by plaintiff. (3) That it was stipulated and agreed between plaintiff and defendant on the trial of said cause that two thousand nine hundred seventy-one dollars and ninety-one cents ($2,971.91) was the amount paid by plaintiff in wheat delivered to defendant as payment upon said contract between the 15th day of September, 1888, and the 21st day of November, 1891, with interest included thereon from the 21st day of November, 1891, to the 20th day of November, 1894, the date of the former verdict in this action. (4) That the value of the use of the said lands during the time plaintiff occupied the same from September 15, 1888, to November 21, 1891, was $1,355, as found by the jury. (5) That there was no other damage, of any nature, sustained by defendant by reason of the occupancy of said lands by plaintiff during the time between September 15, 1888, and November 21, 1891, or by reason of plaintiff's failure to comply with the terms of the said contract, other than the said value of the said use thereof as found by the jury; the plaintiff having in all particulars fully complied with the terms of the said contract, excepting in the making of full payment as specified by the terms thereof. (6) That the plaintiff did not act in a grossly negligent, willful, or fraudulent manner in relation to the payments on the contract in question, but did in good faith make reasonable efforts to comply with the provisions of the contract in question. (7) That the plaintiff did on or about the 25th day of November, 1891, offer in good faith to pay the defendant all sums and balances then due from plaintiff to defendant upon the contract for the purchase of said land, and that such offer was refused by the defendant." It will be observed that the court in this finding finds that the plaintiff did on or about the 25th day of November, 1891, offer in good faith to pay the appellant all sums and balances then due from the plaintiff to the defendant upon the contract, and that such offer was refused by the appellant, and that the court further finds that on or about the same date the defendant terminated the said contract, and ejected the plaintiff from the said premises, and that since said date the performance of said contract has been abandoned by the plaintiff. In effect, the findings are that the contract was abandoned by the respective parties about the date aforesaid.

Ordinarily a party thus paying money upon a contract, who fails to comply with the terms of the same as to the time of payment, but who offers to pay the balance due subsequent to the time when such payments should have been made, and such payment...