Breneman v. Aune, 9141

• Decision Date: 11 October 1950
• Docket Number: No. 9141,9141
• Parties: BRENEMAN et al. v. AUNE.
• Court: South Dakota Supreme Court

Page 219

44 N.W.2d 219

73 S.D. 478

BRENEMAN et al. v. AUNE.

No. 9141.

Supreme Court of South Dakota.

Oct. 11, 1950.

Rehearing Denied Jan. 10, 1951.

John Carl Mundt, Sioux Falls, for plaintiffs and appellants.

Danforth & Danforth, Sioux Falls, for defendant and respondent.

ROBERTS, Judge.

Plaintiffs brought this action to rescind a contract alleged to have been procured by defendant through fraud for the purchase of a residence property in the city of Sioux Falls and for other relief. Defendant answered denying the allegations of fraud, and affirmatively sought strict foreclosure of the contract. Plaintiff replied putting in issue all material facts raised by the cross-complaint. The court made findings in favor of defendant and rendered judgment foreclosing all rights under the contract unless plaintiffs within three months after service of notice of entry of judgment comply with the terms of the contract on their part and pay the costs taxed in the action. Motion for new trial having been overruled, plaintiffs appealed from the judgment.

The allegation of fraud is in substance that defendant represented to the plaintiffs that the house 'was in number one shape', was complete and was constructed of seasoned lumber and that the representations were false because of the fact that the house was not complete and did not have in it seasoned lumber. The basic question presented by the pleadings was whether defendant made the representations in question and whether plaintiffs relied upon them in entering into the contract. The trial court made the following pertinent findings of fact:

'II. That the plaintiffs herein, in the month of January, 1949, after contacting many real estate agents in Sioux Falls, contacted one real estate agent or broker, John O. Sholseth, of Sioux Falls, who did not have said premises actually listed for sale, but thought that said property would be the type of property that the plaintiffs desired and that the same might be for sale; that he contacted the defendant, the owner, on the 12th day of January, 1949, and the plaintiffs accompanied said real estate agent and the defendant owner thereof to said premises and fully inspected said premises; that the defendant priced said real estate at the sum of $7,000.00, the plaintiffs to pay any real estate commission to said broker, Sholseth; that after making such inspection the parties returnd to the office of said Sholseth in Sioux Falls, and on said 12th day of January, 1949, entered into a contract in writing, a copy of which said contract is hereunto attached and marked Exhibit A, and made a part hereof, wherein and whereby the plaintiffs agreed to purchase said premises per the terms and conditions of said written agreement, and on the 13th of January, 1949, paid to said broker the down payment of $2,300.00, of which $300.00 was retained by said broker as and for his commission, and $2,000.00 paid to said Aune, and that on said date, to-wit: January 13, 1949, the plaintiffs entered into possession of said property and have continued to reside therein ever since and are still in actual use and possession of said property. * * *

'V. The Court further finds that there were no false and fraudulent representations made by the defendant herein as an inducement to the plaintiffs entering into said contract, and that the defendant acted in good faith in every manner in said transaction.

'VI. That in entering into said contract the plaintiffs were given a full and complete opportunity to make a full and complete inspection of said premises and the defendant did nothing to prevent such...