Burton v. Ryther

• Decision Date: 16 February 1917
• Docket Number: No. 4060.,4060.
• Citation: 38 S.D. 342,161 N.W. 350
• Parties: BURTON et ux v. RYTHER et ux.
• Court: South Dakota Supreme Court

38 S.D. 342

161 N.W. 350

BURTON et ux

v.RYTHER et ux.

No. 4060.

Supreme Court of South Dakota.

Feb. 16, 1917.

Appeal from Circuit Court, Pennington County; Levi McGee, Judge.

Action by Robert Burton and wife against Lawrence R. Ryther and wife. From judgment for defendants, and order denying new trial, plaintiffs appeal. Affirmed.J. M. Hodgson, of Deadwood, for appellants.

Buell & Denu, of Rapid City, for respondents.

POLLEY, J.

Plaintiffs and defendants entered into a contract whereby defendants agreed to sell, and plaintiffs agreed to purchase, a house and certain lots in Rapid City, including the furniture and furnishing contained in said house. The consideration agreed upon was $9,000; $1,000 was paid in cash, and plaintiffs were given possession of the property. The balance of $8,000 was to be paid at the end of one year, to wit, on the 10th day of November, 1913. The contract provided that, if the said deferred payment was not made when due, said sum of $1,000 already paid, together with interest on the deferred payment and certain sums plaintiffs were to expend for improvements on the property, should be forfeited to defendants as liquidated damages; possession of the property was to be restored to defendants, and plaintiffs' rights were to be terminated. Plaintiffs paid the interest and paid for the improvements agreed upon, amounting in all, with the $1,000 cash payment that had been made, to a little over $1,800, but failed to pay the balance of the purchase price when it became due; whereupon defendants re-entered and took, and have since retained, possession of the property. Thereafter plaintiffs commenced this action for the recovery of the money they had paid under the contract. Defendants had judgment, and plaintiffs appeal.

By their answer, the defendants admitted the facts as above stated; and, by way of affirmative defense, alleged that the rental value of the premises during the time plaintiffs were in possession thereof was $150 per month; and further alleged that when the final payment became due plaintiffs not only failed, neglected, and refused to pay the same, or any part thereof, but represented to defendants that they were unable to pay the same, or any part thereof, and voluntarily surrendered the possession of said premises to defendants, and thereby terminated and abandoned the said contract and all their rights thereunder.

The trial court found as a fact that the rental value of the said property, during the time it was occupied by appellants, was $150 per month; that at the time the $8,000 payment became due the plaintiffs were wholly unable to pay the same; and that they never tendered said amount to respondents nor demanded a conveyance of the title to the said premises. The court further found that the respondents were, at all times, ready, able, and willing to convey to appellants a title such as they contracted for, and that on or between the 10th and 12th days of November, 1913, respondents executed and caused to be tendered to appellants a proper conveyance of said premises on condition that appellants pay the balance due on the purchase price; that appellants failed and refused to pay the same, or any part thereof. The court further found that on the 13th day of November, 1913, appellants informed respondents that they were unable to pay the balance due on the purchase price of the property, and expressed their intention to abandon said premises and surrender possession to respondents, and to terminate and relinquish all their rights under the said contract; that appellants did, on the said 13th day of November, abandon and surrender said premises and terminate all...