Crawford v. Carter, 9243

• Decision Date: 04 March 1952
• Docket Number: No. 9243,9243
• Citation: 74 S.D. 316,52 N.W.2d 302
• Parties: CRAWFORD et ux. v. CARTER.
• Court: South Dakota Supreme Court

Page 302

52 N.W.2d 302

74 S.D. 316

CRAWFORD et ux. v. CARTER.

No. 9243.

Supreme Court of South Dakota.

March 4, 1952.

Rehearing Denied April 18, 1952.

Irving R. Crawford, Huron, for appellants.

Royhl & Benson and Fosheim & Blue, Huron, for respondent.

SMITH, Judge.

In this action, brought by Joe Crawford, to quiet his title to a one-acre tract of land, the defendant L. A. Carter counterclaimed for specific performance of an oral contract to convey. A judgment for specific performance was reversed by this court for the reason that the family homestead of Crawford embraced the acre, and Mrs. Crawford was not a party to the proceeding. Crawford v. Carter, 72 S.D. 514, 37 N.W.2d 241. After Mrs. Crawford had been added as a party defendant Carter filed and served his cross complaint praying specific performance of the above mentioned agreement. Subsequently, this court interpreted its judgment, and granted Crawford's application for a writ of mandamus commanding the trial court to try and determine the issues as made up by the amended pleadings. State ex rel. Crawford Hanson, S.D., 41 N.W.2d 646. A trial of the issues resulted in a second judgment for Carter directing a conveyance to him of the property in question. Mr. and Mrs. Crawford have appealed. We preface consideration of their substantial assignments of error with a brief explanatory statement.

The farm home of the Crawfords is located a little more than a mile north of Huron along the west side of Highway No. 37. It originally included 99 acres. The acre in controversy was added subsequently. It is located immediately south of the farm buildings along the highway; a tax title thereto was acquired by Crawford after it had been abandoned as the site of a radio tower. The farming operations included the raising of hogs, in connection with which Crawford trucked garbage from the city of Huron, and this acre was used as a hog pasture.

For a number of years prior to March 1946 Crawford had been accustomed to go to Carter's place of business in Huron for truck and tractor repairs, and for his gas and oil. During that month negotiations were carried on between them looking toward the possible location of Carter's business on the Crawford farm. From evidence in sharp dispute the court found that in consideration of Carter's promise to erect the necessary structures and relocate his entire business on the radio tower acre, Crawford promised thereafter to convey the acre to Carter; that thereupon Carter went into possession and at a cost of over $5,500 located his business on the acre and in so doing erected a concrete block garage adequately equipped with repair and welding tools, an office building, gasoline pumps on a concrete island, a house, water pipes, and driveways, and that although Carter had completely performed the agreement on his part, Crawford had failed and refused to deed the acre to Carter. Predicated principally on these findings the court decreed specific performance.

In Steensland v. Noel, 28 S.D. 522, 134 N.W. 207, 210, this court quoted from Pomeroy on Contracts, 2d Ed., Sec. 136, as follows: 'In order that a court of equity shall exercise its power to decree a specific execution, where there has been a part performance, the contract itself must be clear, certain, and unambiguous in its terms, and must either be admitted by the pleadings, or proved, with a reasonable degree of certainty, to the satisfaction of the court. If therefore, upon all the evidence given by both parties, the court is left in doubt as to the entire contract, or even as to any of its material terms, it will not grant the remedy although a partial performance of something has been sufficiently proved.' Both phases of this requirement of certainty of proof are argued by the Crawfords as their first two propositions. They argue that (a) there is no such convincing proof of the entire contract as is required to invoke the extraordinary remedy of specific performance and (b) if an agreement as a whole was established all of its terms were not sufficiently certain to make the precise act which is to be done clearly ascertainable. SDC 37.4602(6).

An agreement resulted from the described negotiations of Crawford and Carter. Whether it was an agreement to convey or for a tenancy was the central issue of fact. We do not understand that the Crawfords contend the essential certainty of proof was not achieved merely because there was a conflict in the evidence. They accept the pronouncement of Steensland v. Noel, supra, as follows: 'The correct rule in this class of cases is that the contract with all its material terms and conditions must be proved by evidence which appears clear and satisfactory to the mind of the trial court, and which, even though conflicting, does not leave the court in doubt.' Cf. Johnston v. Eriksson, 71 S.D. 268, 23 N.W.2d 799. We have reviewed the record with that principle in mind. We content ourselves with a statement of our conclusion. Counsel for the Crawfords predicates uncertainty of proof upon instances where agreement between witnesses seems too perfect, and upon inconsistencies in the testimony. However, when the whole evidence is examined in the light of the conduct of the parties after the agreement was reached, we are convinced that solid support appears for an abiding conviction on the part of the trier of the fact that a promise to convey was exchanged for a promise to locate the Carter business on the Crawford property. After hearing and seeing the witnesses, two able and experienced trial judges have separately concluded that such an agreement was consummated.

The contention that there was insufficient proof of the terms of the agreement but reargues the contention made on the former appeal that the verbal understanding failed to describe the property to be conveyed. In response to the original argument we said, 'That which was uncertain became certain as soon as plaintiff put defendant in possession of a plot of ground, and the infirmity in the contract to which plaintiff points was thereby cured. * * * A court of equity does not look with favor on objections raised on grounds of uncertainty after a matter has advanced beyond the stage of contract and that which has been done in reliance on the contract not only makes the precise act which remains to be done clearly ascertainable but leaves the complaining party without an adequate remedy unless the contract be enforced. Pomeroy, Specific Performance of Contracts, Sec. 145,...