Brockel v. Lewton

• Decision Date: 12 May 1982
• Docket Number: Nos. 13383,13387,s. 13383
• Parties: Ted BROCKEL and Gary R. Larson, Plaintiff and Appellees, v. John M. LEWTON and Thelma I. Lewton, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 173

319 N.W.2d 173

Ted BROCKEL and Gary R. Larson, Plaintiff and Appellees, v. John M. LEWTON and Thelma I. Lewton, Defendants and Appellants.

Nos. 13383, 13387.

Supreme Court of South Dakota.

Argued Jan. 18, 1982.

Decided May 12, 1982.

Newell E. Krause, Mobridge, for plaintiffs and appellees.

William H. Coacher, Sturgis, for defendants and appellants.

MORGAN, Justice.

The trial court, sitting without a jury, granted Ted Brockel (Brockel) and Gary Larson (Larson) specific performance of a real estate purchase and sale agreement they entered into with John Lewton and Thelma Lewton (Lewtons). Additionally, the trial court found that the Tysdal Realty Company (Tysdal) had produced a ready, willing, and able buyer pursuant to their listing agreement with Lewtons. ^* Consequently the trial court ordered Lewtons to convey the realty and pay Tysdal five percent of the contract price as commission. Lewtons appealed on several grounds which we deal with seriatim. Brockel and Larson filed a notice of review because the trial court denied them damages for loss of rents and profits while Lewtons held over in possession of the property after the closing date.

Lewtons agreed with Francis Haley (Haley), a real estate agent associated with Tysdal, to sell their ranch and personal property at public auction. On March 20, 1980, they signed a standard form listing agreement with Tysdal which established a purchase price of $420,000 ($250 per acre, 1680 acres) on a contract for deed at twenty percent down and unpaid balance at ".08%" for fifteen years.

During the morning of April 4, 1980, Haley contacted Brockel and Larson. He showed them a plat of Lewtons' ranch which accurately portrayed the 1680 acres. Brockel and Larson wanted better terms; $225 per acre on a contract for deed at eight percent for twenty years. A written offer was not prepared. After receiving this verbal offer, Haley called Jon Haivala (Haivala), a real estate broker with Tysdal, and together they proceeded to Lewtons' ranch.

While at Lewtons' ranch, Haley described the Brockel/Larson verbal offer to Lewtons and Haivala, despite Haivala's custom of presenting only written offers. In Lewtons' presence, Haivala prepared the written offer and agreement to purchase. Haivala read the agreement to Lewtons. Lewtons signed the agreement.

This document described the land, in part, as including the SW 1/4, NW 1/4, and S 1/2 SE 1/4, Section 35, T16N, R14E; .... Subsequently, this description was found to be erroneous because Lewtons do not own the entire NW 1/4 of Section 35. They do, however, own the NW 1/4 of the SE 1/4 of Section 35. The trial court found that the placement of the comma after NW 1/4 in the land description was a clerical error.

In the afternoon of April 4, 1980, Haley and Haivala presented the signed document to Brockel and Larson. Four changes were made to the document; in three places Haivala corrected an admittedly erroneous date, and all irrigation equipment on the premises was included in the property description. Brockel and Larson signed the offer and initialed each change. Haivala also initialed the changes, apparently, as a notary of sorts.

Haivala, Haley and Larson then went to Lewtons where John Lewton initialed all changes and Larson delivered the earnest money; two checks, $500 each, one from Larson, one from Brockel. Lewtons agreed to have the abstract brought up to date and to have Haivala's lawyer draw the contract for deed. Everyone stood around and shook hands.

On April 11, 1980, at the auction, in the presence of John Lewton, Haley announced that the land had been sold. Both parties acted as if a deal had been struck. Brockel and Larson arranged financing and Lewtons had the abstract updated.

After the auction, Lewtons went on vacation. On May 29, 1980, Haivala contacted Lewtons in Gillette, Wyoming, and told Lewtons that the closing was set for June 7, 1980. This conversation received two...