Gira v. Harris

• Decision Date: 12 June 1901
• Citation: 86 N.W. 624,14 S.D. 537
• Parties: GIRA et al. v. HARRIS.
• Court: South Dakota Supreme Court

86 N.W. 624

14 S.D. 537

GIRA et al. v. HARRIS.

Supreme Court of South Dakota

June 12, 1901

Appeal from circuit court, Custer county; Levi McGee, Judge.

Suit by Frank A. Gira and others against Jesse Harris for the specific performance of a contract to convey land. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Ed. L Grantham and A. T. Feay, for appellant. W. G. Benedict, B. R Wood, and C. S. Smith, for respondents.

CORSON J.

This is an action by the plaintiffs to enforce the specific performance of a contract entered into by the defendant with Charles Rhodes, one of the plaintiffs, in which it is claimed said Rhodes was acting for and in behalf of all the plaintiffs. Findings and judgment were in favor of the plaintiffs, and the defendant appeals.

The contract in controversy is as follows: "Agreement: This agreement, made and entered into this 22nd day of April 1899, by and between Jess Harris, of the county of Custer state of South Dakota, party of the first part, and Charles Rhodes, of Custer county, and state of South Dakota, party of the second part: That for and in consideration of the sum of one dollar ($1.00) to the said party of the first part in hand paid by the said party of the second part (the receipt is hereby confessed and acknowledged), and of the covenants and agreements herein contained, the said parties of the first part agree to convey to said parties of the second part an undivided one-half interest in and to the Hard Times group of mining claims situated in Custer county, South Dakota, on payment of three hundred dollars ($300.00) on the 25th day of May, 1899. Witness my hand and seal. Jess Harris. Witnesses: Henry Cox, John Hoffman." The court finds that $200 was paid upon this contract prior to and on the 26th day of May, 1899, and that at that time the contract was extended to June 7, 1899. The receipt for the money paid on that date and the extension of time read as follows: "Spokane, S. D., May 26th, 1899. Received of F. A. Gira forty-two dollars to apply on Iron Mountain claims Hard Times; balance to be paid on or before June seventh, 1899. $42.00. Jess Harris." Among other findings, the court finds: "That on June 7, 1899, these plaintiffs tendered the defendant the balance of the purchase price in lawful money of the United States, less the sum of $10, which the plaintiffs agreed to pay on the morning of June 8, 1899, and the defendant, by his conduct, led plaintiffs to believe that the payment of the whole sum on the following morning would be satisfactory to him, and demanded of the defendant the execution and delivery of the deed of the property hereinbefore described; that the defendant refused to accept the money, and refused to make the deed; that the plaintiffs had complied with all the terms of said contract of purchase on their part, but the defendant refused to give the deed, and now refuses to give the same; that the contract for the purchase of said ground was made and entered into for the express benefit of all these plaintiffs; that Rhodes was acting for the plaintiff; that the said plaintiffs in this action planted a crop upon said land consisting of potatoes and grasses growing upon the land; that the plaintiffs in this action lost all of said crop; that it was converted to the use of the defendant by the defendant; that the value of the rents, issues, and profits of said premises was $200." From these findings the court concludes as matter of law that the agreement was substantially complied with on the part of the plaintiffs, and that they are entitled to a deed for said property; that $100 of the damages for the use and occupation of the property be set off against the purchase price; and judgment was entered accordingly.

It is contended on the part of the appellant that the court erred in construing the contract to constitute a purchase of the property, and that the contract is not a contract of purchase for...