Gardner v. Welch

• Citation: 110 N.W. 110,21 S.D. 151
• Parties: GARDNER v. WELCH et al.
• Decision Date: 19 December 1906
• Court: South Dakota Supreme Court

110 N.W. 110

21 S.D. 151

GARDNER v. WELCH et al.

Supreme Court of South Dakota

December 19, 1906

Appeal from Circuit Court, Douglas County.

Action by M. D. Gardner against Irving R. Welch and another, doing business under the name of the Charles Mix County Land Company. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

W. E Tipton, C. H. Dillon, for appellant.

French & Orvis, for respondents.

HANEY J.

The allegations of the complaint are in substance as follows That defendants were and are partners, doing business under the firm name of the "Charles Mix County Land Company." That plaintiff was the owner of certain merchandise of the value of $1,100. That defendants were the owners of a certain quarter section of land, title to which was in one A. H. Pease, for their own use and benefit, upon which there was a mortgage for $600, falling due May 4, 1899 with interest payable annually. "That on the 10th day of May, 1894, the defendants purchased of the plaintiff the said stock of merchandise, and the plaintiff sold and delivered said merchandise to the defendants at the agreed price of $1,100, to be paid on or before five years from date of sale at 8 per cent. interest. That the defendants, for and in consideration of receiving said $1,100 stock of merchandise so delivered to them, then and there agreed to guaranty to the plaintiff by their written guaranty the payment of the said $1,100, with 8 per cent. interest, on or before five years from said date and to cause to be deeded to Asa Gardner, plaintiff's son, said real estate, which was then and there to be held by said Asa Gardner for the protection of plaintiff and defendants, and as security for the payment to plaintiff of said $1,100, with interest thereon, and the plaintiff and defendants, in order to carry out said agreement and understanding, did then and there make, execute, and deliver their certain written contract in the words and figures following, viz.: 'It is this day agreed between the Charles Mix County Land Co. of Edgerton, South Dakota, and M. D. Gardner, of Bon Homme, Bon Homme County, South Dakota, as follows: The Charles Mix County Land Co. this day takes charge of and assumes control of the S. E. 1/4, Sec. 23, Twp. 100, R. 67, title of which is in Asa Gardner, and agrees to pay interest as it matures on present loan of $600, now on land, and guarantees Gardner $1,100 principal and eight per cent. interest within five years from this date, the said company to have all rentals and full use of said land, Gardner is to pay taxes as they become due, and to furnish good deed at any time requested by said company, on payment of the $1,100 and interest aforesaid with matured interest from this date to date of tender. The said Land Co. is to have any excess received from said land above the $600 encumbrance and $1,100 with interest at eight per cent. This agreement may be canceled at any time, by mutual consent but is not transferable. Gardner has privilege of disposing of land himself at any time on payment of a reasonable sum for this guaranty. Dated at Bon Homme, So. Dak., this 10th day of May, 1904. Charles Mix County Land Co., By Irving H. Welch. M. D. Gardner."' That pursuant to this contract defendants caused said land to be conveyed to said Asa Gardner, and then took possession of the same, and have since had full control and use thereof, and have received its rents and profits. That defendants neglected, failed, and refused to pay the interest on the aforesaid mortgage, which fell due May 4, 1895, May 4, 1896, and May 4, 1897. That the mortgagee named therein foreclosed the same on account of the default in nonpayment of interest, caused the land to be sold, and acquired title to the same July 13, 1898. That from the making of the aforesaid contract until the mortgagee acquired title to the land the plaintiff was able and willing to convey the same to the defendants whenever requested, upon payment of $1,100, with interest at 8 per cent. That more than five years have elapsed since the making of said contract, and defendants have neglected, failed, and refused to pay for said merchandise or to pay any part of said $1,100, and have not at any time demanded a conveyance of the land. That since the expiration of said five years plaintiff has repeatedly demanded of defendants the payment of said $1,100, with interest at 8 per cent. per annum, but defendants have failed and refused to pay any part thereof. Wherefore plaintiff demands judgment for $1,100, with interest at 8 per cent. per annum from May 10, 1894, and costs. The answer, in effect, admits the partnership; the plaintiff's ownership of the merchandise; defendant's ownership or control of the land; the execution of the contract; that defendants rented the land for one or two years, receiving the rent therefor; that defendants have paid no part of the $1,100; that the land was mortgaged for $600; that defendants never paid any interest on the mortgage; and that the mortgage was foreclosed and deed issued to the purchaser. All other allegations of the complaint are denied, and it is alleged "that it was agreed between plaintiff and the defendants that said conveyance of said land should be accepted by plaintiff in full payment for said stock of merchandise."

The learned circuit court found, inter alia: That on April 25 1894, the parties entered into a contract, whereby it was agreed, in effect, that defendants would convey to the plaintiff, or such person as he should designate, by good and sufficient deed, the land described in the complaint, free from all liens or incumbrances, except a mortgage for $600, due on or before five years, and that plaintiff would sell and deliver to defendant $1,100 worth of merchandise. "That thereafter, and prior to the 10th day of May, 1894, the plaintiff saw the defendant John W. Harding and told him that he would not carry out said contract." That thereafter, and on the 10th day of May, 1894, the defendant Irving H. Welch went to the residence of plaintiff, where the stock of merchandise referred to in said contract was kept, taking with him a person competent to invoice said merchandise, and a warranty deed for the land above described, executed by Addison H. Pease and wife, to Asa Gardner, a son of the plaintiff. That said deed contained a covenant as follows: "And the said Addison H. Pease and Carrie Pease, for themselves and their heirs, executors, and administrators, do covenant and agree to and with the said party of the second part, his heirs and assigns, that they are well seized in fee of the land and premises aforesaid *** and that the same are free from all incumbrances whatsoever, except a mortgage of $600 in favor of the Iowa Land Company, Ltd., of Sibley, Ia., due on or before five years from date, with interest at 10 per cent., which mortgage party of the second part assumes and agrees to pay as part of purchase price hereof." That said deed was dated May 3, 1894,...