Dal v. Fischer

• Decision Date: 03 April 1906
• Parties: DAL v. FISCHER et al. [a3]
• Court: South Dakota Supreme Court

107 N.W. 534

20 S.D. 426

DAL v. FISCHER et al. ^[a3]

Supreme Court of South Dakota

April 3, 1906

Appeal from Circuit Court, Spink County.

Action by Christine E. Dal against George W. Fischer and others. From a judgment for defendants, and an order denying a new trial, plaintiff appeals. Reversed, and new trial ordered.

W. F Bruell and A. J. W. Appell, for appellant.

N. P Bromley, for respondent Fischer.

HANEY J.

On October 8, 1901, the plaintiff was the owner of the S.W. 1/4 of section 5--116--63, in Spink county, this state. She and her son, the defendant John W. Dal, resided in Chicago. The defendants Fischer and Merchants' Bank of Redfield resided in Spink county. On that day the following writing was signed by defendant Dal, and delivered to defendant Fischer at the plaintiff's home in Chicago: "It is agreed that George W. Fischer shall, as my agent, contract that I, Dr. John W. Dal, of Chicago, Ill., will sell the following described lands to any purchaser found by him within sixty days from the date thereof, viz.,also the right to purchase for himself S.W. of 5--116--63, situate in Spink county. The price to be not less than two thousand dollars. I agree to furnish to the purchaser, within thirty days, after a deposit of two hundred and fifty dollars is made with me or with the Merchants' Bank of Redfield, South Dakota, a complete abstract of title to said land. The said property to be conveyed free of all incumbrances with good and sufficient warranty deed. The said property shall remain in the hands of the said George W. Fischer, exclusively, for sixty days from date, and if he sells the same within said time I will pay him commission of five per cent. upon the purchase price. Witness my hand this 8th day of October, A. D. 1901. Dated at Chicago, Ills. John W. Dal, Agt. for Christine Dal." The italicized words and figures were inserted by Fischer after his return to Redfield. Though the execution of this instrument was neither acknowledged nor proved, so as to entitle it to be recorded it was in fact recorded in Spink county, March 12, 1902. On December 20, 1901, the following lettter was received by the defendant bank at Redfield "Gentlemen: Inclosed please find papers relating to the sale of Mrs. Christine E. Dal's farm, which consists of the following: (1) Warranty deed executed by Mrs. Dal; also the original patent of said farm. (2) Trust deed and note, with interest coupons. Please have Mr. George W. Fischer execute the same. If the trust deed does not conform with the laws of Dakota please have a new one drawn up. I also inclose insurance policy which has still a year to run before it expires, so the purchaser will have to pay $5.00 for the unexpired time. The purchase price, as you no doubt understand, is to be $2,000--$1,000 down and the balance in two years. Send draft to Dr. John W. Dal, No. 499 N. Robey St., Chicago. Very truly yours, Albert J. W. Appell." Because of an unsatisfied judgment against one of plaintiff's grantors, which appeared to be a lien on the land, for an amount far in excess of its value, and other unimportant reasons, Fischer refused to accept the plaintiff's deed. After numerous fruitless efforts to reach a settlement the plaintiff demanded a return of the papers on deposit with the defendant bank, and instituted this action to recover possession of the same and to have the recorded contract canceled. Defendant Fischer served a separate answer; also a pleading designated "a cross-complaint"; and defendant Dal served a so-called "cross-complaint." It would be difficult to imagine how the rules of procedure in this state could have been more completely ignored than they were in this case, but as no one objected, the pleadings must stand for what they are worth. Defendant Dal was neither a necessary nor proper party, and it is doubtful if the record of the unacknowledged and unproved contract constitutes a cloud upon plaintiff's title; but, assuming it does, nothing more was really involved than plaintiff's right to have canceled, and to recover possession of the papers on deposit with the bank and a counterclaim against the plaintiff in favor of defendant Fischer for such damages as he may have sustained by reason of the plaintiff's failure to perform her alleged contract. As the contract was not entitled to be recorded; as the time in which Fischer could act under it had expired; and as he elected to take damages rather than a specific performance, the plaintiff was entitled to the relief prayed in her complaint and the only remaining issue was the amount, if any, of Fischer's damages for the plaintiff's breach of the alleged contract. On the theory that Fischer might have sold the property for $400 in excess of what the plaintiff was to receive, the court before whom the case was tried without a jury, rendered a judgment in his favor for that amount together with costs and disbursements, leaving the record as it was and plaintiff's papers on deposit in the bank. Plaintiff's motion for a new trial having been denied an appeal was taken from the judgment and order.

As the contract in controversy is one affecting real property situate in this state, where it was to be performed, its validity should be determined by the law of this jurisdiction, and not by the law of the place where it was executed....