GMS, Inc. v. Deadwood Social Club, Inc., No. 13796

CourtSupreme Court of South Dakota
Writing for the CourtMORGAN
Citation333 N.W.2d 442
Decision Date18 January 1983
Docket NumberNo. 13796
PartiesGMS, INC., A South Dakota Corporation, Plaintiff and Appellant, v. DEADWOOD SOCIAL CLUB, INC., A South Dakota Corporation, Defendant and Appellee. . Considered on Briefs

Page 442

333 N.W.2d 442
GMS, INC., A South Dakota Corporation, Plaintiff and
Appellant,
v.
DEADWOOD SOCIAL CLUB, INC., A South Dakota Corporation,
Defendant and Appellee.
No. 13796.
Supreme Court of South Dakota.
Considered on Briefs Jan. 18, 1983.
Decided May 4, 1983.

Raymond J. Voelker, Jr. of Voelker & Adams, Deadwood, for plaintiff and appellant; Mary Anne Kenton of Voelker & Adams, Deadwood, on the brief.

William L. Severns, Deadwood, for defendant and appellee.

MORGAN, Justice.

This action arises from a contract for the sale of a business and the underlying real and personal property from Deadwood Social Club, Inc., appellee (Seller), to GMS, Inc., appellant (Buyer). Buyer defaulted on this contract for deed and brought this action for declaratory judgment. Upon a judgment by the court quieting title to certain personal property in the Seller, Buyer appeals. 1 We affirm.

On April 30, 1981, Buyer and Seller entered into an agreement for Buyer to purchase from Seller the building known as the Carpetbagger Hotel located on Main Street in Deadwood, South Dakota. The property to be sold included the business located therein, known as the Bandito Restaurant, together with all inventory, equipment and fixtures. The contract provided for a purchase price of $210,000, allocated as sixty-five percent for the building, five percent for the goodwill and non-competition

Page 443

clause, twenty percent for the equipment, and ten percent for the furniture and fixtures. It further provided that should Buyer default, "Seller shall have the right to retake the property and to retain all payments previously made by the buyer and all improvements made by it on the premises as liquidated damages for the breach of this agreement." At the closing, Buyer requested that it receive the bill of sale for the personal property at that time rather than having the bill of sale placed in escrow as provided in the agreement. Buyer's reason for the request was to use the bill of sale as collateral to obtain a loan for the downpayment. 2 Seller agreed and the provisions of the contract calling for the bill of sale to be placed in escrow were deleted and initialed by the parties as the contract was signed. Buyer then used the personal property as collateral for a loan from the First National Bank of the Black Hills, Lead, South Dakota. 3 Subsequently, Buyer breached the contract by making only three monthly payments, failing to insure the premises, and making no provision for the payment of its share of the taxes.

Upon Buyer's default the premises were returned to Seller, pursuant to the default provisions under the contract. Since the personal property was located in the premises returned to Seller, Seller also received possession of the personal property. Buyer, however, retained the beer license and brought this action seeking its rights declared to this personal property. Seller counterclaimed, seeking forfeiture of the contract and its title quieted to all of the personal property, including the beer license. The judgment signed by the court decreed that Seller "shall be given immediate possession [of all personal property] including the beer license...." Buyer appeals from this judgment.

Initially, we deal with Seller's contention that Buyer's appeal should be dismissed due to Buyer's failure to object to the findings of fact and conclusions of law on a timely basis. We hold, however, that such failure does not require dismissal of the appeal. Rather, the rule is:

[T]hat where the sufficiency of the evidence was not questioned before the trial court by ... request for findings or other appropriate procedure sufficiency of the evidence cannot be reviewed and appellant is therefore limited to the question of whether the findings support the conclusions of law and judgment.

Application of Veith, 261 N.W.2d 424, 425 (S.D.1978);...

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25 practice notes
  • Endres v. Endres, No. 18812
    • United States
    • Supreme Court of South Dakota
    • June 26, 1995
    ...N.W.2d 479 (S.D.1990); Quick v. Bakke, Kopp, Ballou & McFarlin, Inc., 380 N.W.2d 364 (S.D.1986); GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442 (S.D.1983); Kohlman v. Cahill, 301 N.W.2d 664 (S.D.1981). This Court has not, however, previously considered the question of goodwill in a......
  • In re Dakota Country Store Foods, Inc., Bankruptcy No. 486-00672
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — District of South Dakota
    • December 11, 1989
    ...the same transaction, the court must consider and construe the instruments as one contract. G.M.S., Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442, 444 (S.D.1983); Fletcher, supra, § 3034, at 174; E. Farnsworth, Contracts § 7.10, at 493 (1982). These documents were executed contemporane......
  • Nelson v. WEB Water Development Ass'n, Inc., No. 17966
    • United States
    • Supreme Court of South Dakota
    • October 27, 1993
    ...contractual provisions will be construed harmoniously and effect given to all provisions. GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442, 444 (S.D.1983). Therefore, the two provisions should be read as providing separate means by which either the membership or the Board may amend t......
  • Hayes v. Northern Hills General Hosp., No. 20497
    • United States
    • Supreme Court of South Dakota
    • March 10, 1999
    ...the parties." S & S Trucking v. Whitewood Motors, Inc., 346 N.W.2d 297, 299 (S.D.1984) (citing GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442 (S.D.1983); Forester v. Weber, 298 N.W.2d 96 (S.D.1980)). "In determining the intent of the parties, we must consider the entire contract." ......
  • Request a trial to view additional results
25 cases
  • Endres v. Endres, No. 18812
    • United States
    • Supreme Court of South Dakota
    • June 26, 1995
    ...N.W.2d 479 (S.D.1990); Quick v. Bakke, Kopp, Ballou & McFarlin, Inc., 380 N.W.2d 364 (S.D.1986); GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442 (S.D.1983); Kohlman v. Cahill, 301 N.W.2d 664 (S.D.1981). This Court has not, however, previously considered the question of goodwill in a......
  • In re Dakota Country Store Foods, Inc., Bankruptcy No. 486-00672
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — District of South Dakota
    • December 11, 1989
    ...the same transaction, the court must consider and construe the instruments as one contract. G.M.S., Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442, 444 (S.D.1983); Fletcher, supra, § 3034, at 174; E. Farnsworth, Contracts § 7.10, at 493 (1982). These documents were executed contemporane......
  • Nelson v. WEB Water Development Ass'n, Inc., No. 17966
    • United States
    • Supreme Court of South Dakota
    • October 27, 1993
    ...contractual provisions will be construed harmoniously and effect given to all provisions. GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442, 444 (S.D.1983). Therefore, the two provisions should be read as providing separate means by which either the membership or the Board may amend t......
  • Hayes v. Northern Hills General Hosp., No. 20497
    • United States
    • Supreme Court of South Dakota
    • March 10, 1999
    ...the parties." S & S Trucking v. Whitewood Motors, Inc., 346 N.W.2d 297, 299 (S.D.1984) (citing GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442 (S.D.1983); Forester v. Weber, 298 N.W.2d 96 (S.D.1980)). "In determining the intent of the parties, we must consider the entire contract." ......
  • Request a trial to view additional results

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