Garber v. Haskins, 10623

• Decision Date: 11 December 1969
• Docket Number: No. 10623,10623
• Citation: 84 S.D. 459,172 N.W.2d 721
• Parties: Alfred GARBER, Administrator of the Estate of Elmer Garber, Deceased, Plaintiff-Respondent, v. Ben HASKINS and Nena Haskins, his wife, Leon Haskins and Nadine Haskins, his wife, Defendants-Appellants.
• Court: South Dakota Supreme Court

Page 721

172 N.W.2d 721

84 S.D. 459

Alfred GARBER, Administrator of the Estate of Elmer Garber Deceased, Plaintiff-Respondent, v. Ben HASKINS and Nena Haskins, his wife, Leon Haskins and Nadine Haskins, his wife, Defendants-Appellants.

No. 10623.

Supreme Court of South Dakota.

Dec. 11, 1969.

Stephens, Riter, Mayer & Hofer, Pierre, for defendants-appellants.

Martens, Goldsmith, May, Porter & Adam, Pierre, for plaintiff-respondent.

RENTTO, Judge.

This is an action for revision of a contract for deed and its strict foreclosure. The court revised the contract as requested by plaintiff and ordered its foreclosure. Defendants appeal.

The realty involved is a 3,000 acre Sully County ranch. It was owned by plaintiff's intestate when the contract was entered into. The defendants are two Haskins brothers and their wives. They were residents of Oklahoma where Leon engaged in farming and Ben in the highway construction business. Leon Haskins, the younger of the brothers, had lived in South Dakota for several years farming land that adjoined the ranch here involved and doing custom combining. He was the only defendant taking an active part in this transaction, but the others concede that he was also acting for them.

In November 1965 Elmer Garber listed his ranch for sale with a real estate agent in Sully County. Shortly thereafter the agent contacted Leon Haskins in Oklahoma and advised him of the listing. He promptly came to South Dakota and with the agent went to see the owner and the land. In their conversations leading up to the written contract it was agreed by all that the ranch consisted of 3,040 acres; that it was to be sold for $90.00 an acre, making a total price of $273,600.00; that the down payment would be 29% Of this or $79,344.00 to be paid when the contract was executed; that the balance of $194,256.00 and interest thereon would be amortized and paid in 15 equal annual installments with the first annual payment on January 2, 1968; that the unpaid balance would bear interest at the rate of 5 1/5% Per annum from March 1, 1966; that the first payment of interest would be paid on Janury 2, 1967 and thereafter when the annual payments on the principal were due.

After these preliminary negotiations the seller, buyer and agent met with Garber's lawyer for additional discussion which resulted in only minor changes in their agreement. The buyer and seller apparently had another meeting with this lawyer after which an amortization schedule of payments applicable to the terms agreed on was ordered through a local bank from a Wisconsin firm which specialized in furnishing such service. Upon receipt of this a written contract was prepared specifying the annual payments to be in the amount shown on the amortization schedule which was $13,430.32. A copy of the schedule was attached to and made a part of the contract.

Haskins took the contract to his local lawyer who suggested changes which were made. It was taken by him to Oklahoma where it was retyped to include the wives of the defendants as purchasers and signed by the defendants. After this it was brought back to South Dakota and signed by the seller on February 28, 1966. A few days after he executed it $79,334.00 was paid to him as the down payment by the defendants. A deed conveying the premises to the purchasers and abstracts of title, together with an executed copy of the contract, were deposited in escrow in the Dakota State Bank at Blunt, South Dakota. Defendants took possession of the premises and commenced farming it more intensively and extensively than it had been cropped by the seller. Apparently they are still in possession of the ranch.

In August 1966 it was learned that the annual payments specified in the original amortization schedule--and incorporated therefrom in the contract for deed--were incorrect in amount. A new and corrected schedule was secured. Under it the annual payments were $19,353.27. The purchasers and the escrow holder were notified of this mistake and furnished a copy of the new schedule. On December 30, 1966, the purchasers paid to the escrow holder.$8,903.39, being the interest due on the unpaid portion of principal from March 1, 1966 at 5 1/2% Per annum. On January 2, 1968 they tendered to the escrow holder $13,430.32 as the annual payment due under the contract. On instructions from plaintiff it was declined. The purchasers deposited that amount to the credit of plaintiff in the First National Bank of Pierre, South Dakota, and notified him thereof. It was never taken or accepted by plaintiff and remains as deposited by defendants.

Plaintiff then instituted this action claiming that the incorrect schedule of amortization payments included in the contract resulted from a mutual mistake of the parties and asked that the contract be revised by incorporating therein the correct schedule of payments so as to express the true intent of the parties. His complaint also alleged that the purchasers have not made the payments required of them by the contract and because of such default requested that they be foreclosed of all rights thereunder. Defendants by their answer asserted that the schedule of payments included in the contract represented the true intent and agreement of the parties. They alleged that they had complied with all its terms and expressed their willingness and ability to make the payments required thereby. They asked only that plaintiff's complaint be dismissed.

The court found that the parties intended that the deferred principal balance of $194,256.00 be paid off in 15 equal annual payments covering both principal and interest and that as to the amount of these annual payments the intention of the parties is expressed by the second...