Farmers' Elevator Co. of Colton v. Swier

• Decision Date: 15 November 1926
• Docket Number: No. 5673.,5673.
• Citation: 50 S.D. 436,210 N.W. 671
• Parties: FARMERS' ELEVATOR CO. OF COLTON v. SWIER et al.
• Court: South Dakota Supreme Court

50 S.D. 436

210 N.W. 671

FARMERS' ELEVATOR CO. OF COLTON

v.SWIER et al.

No. 5673.

Supreme Court of South Dakota.

Nov. 15, 1926.

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by the Farmers' Elevator Company of Colton, S. D., against Peter Swier and Otto Steineke. From a judgment for plaintiff, and an order denying a motion for new trial, defendant Steineke appeals. Reversed, with instructions.H. E. Judge and H. F. Chapman, both of Sioux Falls, for appellant.

Krause & Krause, of Dell Rapids, for respondent.

KNIGHT, Circuit Judge.

Plaintiff secured judgment upon a trial by jury against both defendants for building material and labor furnished to Swier, such labor having been furnished by Austin Boen, plaintiff's assignor. From this judgment and the order denying his motion for new trial, the defendant Steineke has appealed.

In 1919 appellant entered into a contract for the sale of certain real estate to Swier who went into possession thereof, under such contract, and made extensive improvements thereon, using building materials furnished by respondent and labor furnished by respondent's assignor. In March, 1921, default having accrued in the conditions of the contract of purchase and sale, appellant instituted proceedings for the foreclosure thereof and while such proceedings were pending, and on May 14, 1921, appellant and Swier entered into a written agreement, hereinafter called settlement agreement, which, after reciting the making of said contract of purchase and sale and the institution of said proceedings, contained the following provisions:

“And whereas, the parties hereto have mutually agreed to settle and adjust said litigation without the necessity of court action, it is hereby agreed by and between the parties hereto that the said Peter Swier does hereby and herein forever relinquish and release unto the said Otto Steineke and Annie Steineke all his right, title and interest in and to said contract for deed, and all his right, title and interest in and to the above-described real estate.

In consideration of said release and relinquishment by the said Peter Swier, the said Otto Steineke and Annie Steineke do hereby agree that if the said Peter Swier shall on or before the 1st day of December, A. D. 1921, pay to the said Otto Steineke and Annie Steineke all the money which shall on the day of said payment, or on said 1st day of December, 1921, be then due and owing, under the terms of said contract for deed, then the said Peter Swier shall have the right thereafter to continue making payments according to the terms of said contract in the same manner as though this agreement had not been made, and no breach of said agreement on the part of the said Peter Swier had occurred.

It is further understood and agreed that the said Otto Steineke and Annie Steineke shall, by virtue of this agreement, acquire absolutely no right, title or interest in and to any crops of any nature or description raised upon the said premises by the said Peter Swier during the year 1921.

It is further understood and agreed and made a part of this agreement that the said Peter Swier shall vacate and surrender said premises not later than the 1st day of March, A. D. 1922, if before the 1st day of December, 1921, he shall have failed to make the payments then due and owing according to terms of said contract for deed, or unless he shall at said time have written permission from the said Otto Steineke and Annie Steineke to continue occupancy of said premises, or the said Otto Steineke and Annie Steineke shall then have given to him a lease of said property.

It is further understood and agreed and made a part hereof, that if the said Peter Swier shall remain in occupancy and possession of said premises after said 1st day of March, 1922, without having on or before December1, 1921, paid to the said Otto Steineke and Annie Steineke the amount then due and owing according to the terms of said contract for deed, or without having the written permission of said Otto Steineke and Annie Steineke, or without having obtained from the said Otto Steineke and Annie Steineke a lease of said premises, then the said Otto Steineke and Annie Steineke may take judgment by default against the said Peter Swier in the action now pending between the parties in the circuit court of Minnehaha county, S. D., and said judgment may be taken without notice to the said Peter Swier, and said judgment may decree foreclosure of said contract for deed to become effective as of the date when said judgment shall be made.”

Prior to the making of said settlement agreement, plaintiff and its assignor had filed mechanics' liens for the materials and labor for which respondent had judgment in this action, and thereafter, and while Swier remained in possession of said premises, respondent brought action against Swier and this appellant for the foreclosure of said liens, and, upon the trial of such foreclosure action, the court found, among other things, that there was then due and owing from Swier to respondent substantially the amounts for which judgment was rendered in the present action, but that appellant herein was absent from the state of South Dakota while said buildings were being constructed and had no knowledge that such building was being done until long after its completion, and thereupon the court dismissed said forclosure action, with costs to Steineke. No appeal from that judgment was taken, and thereafter the present action was commenced, and in its complaint, after setting up many of the matters hereinbefore referred to, respondent alleged that:

“On May 14, 1921, the defendant Steineke and Swier negotiated for and agreed upon settlement and adjustment of said litigation without the necessity of court action; that they then and there mutually agreed that in consideration of said Swier relinquishing unto the said Steineke and wife, all his right, title and interest in and to the said contract, Exhibit A [the same being the contract of purchase and sale], and all his right, title and interest in and to all the lands and premises therein described, subject only to his remaining in possession of said premises for a limited time, the said Steineke promised and agreed to assume and pay the above-named amount and balance so then remaining due and owing to this plaintiff from the said Swier...