Kimm v. Wolters

• Decision Date: 14 November 1911
• Citation: 133 N.W. 277,28 S.D. 255
• Parties: GUSTAVE H. KIMM, Plaintiff and respondent, v. O. W. WOLTERS, Defendant and appellant.
• Court: South Dakota Supreme Court

28 S.D. 255, 133 N.W. 277 (1911)

GUSTAVE H. KIMM,

Plaintiff and respondent,

v. O. W. WOLTERS,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. Alva E. Taylor, Judge

Affirmed

O. S. Hagen

Attorney for appellant.

W. A. Lynch

Attorney for respondent.

Opinion filed November 14, 1911

CORSON, J.

This is an appeal by the defendant from the judgment of the circuit court in favor of the plaintiff and order denying a new trial. The action was instituted by the plaintiff to recover the amount of taxes paid by him, which he in his complaint alleges was agreed to be paid by the defendant, but which the defendant neglected and refused to pay. It is alleged in the complaint, in substance, that in the spring of 1906 the plaintiff purchased from the defendant a tract of 480 acres of land lying in Beadle county; that in consideration that the said defendant was to have the use and occupation of said land up to March, 1907, he agreed to pay the taxes levied on said land for the year 1906, when. the same accrued and before the same should become delinquent; that the tax so levied and assessed against said property was the sum of $59.58; that in violation of said agreement the defendant neglected to pay said taxes; that, in order to prevent the land from being sold for said taxes, the plaintiff on June 13, 1907, paid the same with interest amounting to $61.96; and that by reason of the failure of the defendant to pay said taxes the plaintiff sustained damages in the sum of $61.96, for which he demands judgment. The defendant in his answer denies every material allegation contained in said complaint and alleges that in April, 1906, the plaintiff purchased the premises in question, and that a contract in writing was then entered into between the parties embodying said agreement; that on July 5th, the same year, the defendant in compliance with said written agreement delivered to the plaintiff deeds of conveyance for said premises; that, according to the agreement entered into between the plaintiff and defendant at the time of purchase, the defendant was to deliver up possession of said premises after September 1, 1906, and before March 1, 1907; that the defendant never agreed to pay any taxes levied on said premises for the year 1906; but that by virtue of the statute in such case made and provided it was incumbent upon the plaintiff to pay the same. The case was tried by the court with a jury which returned a verdict in favor of the plaintiff. The amount involved in this controversy is comparatively small, but the principles of law involved are are quite important. Numerous errors are assigned; but in the view we take of the case it will only be necessary to consider and discuss certain assignments in the admission of evidence and errors alleged in the instruction of the court to the jury.

It is disclosed by the evidence that in April, 1906, the plaintiff entered into a written contract with the defendant for the purchase of 480 acres of land in Beadle county; that in that contract no reference was made to the taxes for the year 1906; that on the 5th of July the defendant executed deeds for the property; and that the plaintiff executed certain notes secured by mortgages on the same, and also a note for $1,000 hereinafter referred to.

The plaintiff as a witness in his own behalf was shown the paper marked "Exhibit 1," and asked if that was the note which contained the agreement to pay taxes by Wolters, to which answered: "This is the note. It was delivered in connection with the mortgage and other notes executed in pursuance of this original contract. He took this note, Exhibit 1, with him when he left Mr. Null's office. I signed it in presence of Mr. Wolters. This note was executed in payment of the contract for the land." The witness further testified: "I paid it several days before it was due" at the bank where it was left for collection. "At the time I paid the note I did not take out the taxes from the note.

On cross-examination he testified:

"I went to his (Wolters') place and agreed on the price. Afterwards we entered into a written agreement. We went to Mr. Null and had him draw up the contract, and the agreement was talked over between us, and Mr. Null drew up the contract accordingly, and read this paper (contract) to us and we signed it."

Mr. Null, being called as a witness for the plaintiff, testified in substance: That when making out the deeds, mortgages, etc., in July, 1906, there was something said about taxes for the current year, about Mr. Wolters taking the crop that year, and that he prepared the note, inserting the clause into it as to taxes; that it must have been with the knowledge and consent of both parties, as they were both present.

The note was then offered in evidence and was objected to on several grounds,, among which were that it was not an agreement on the part of Wolters, not being signed by him, and that there was no consideration for the promise alleged to have been made on the face of the note. The objection was overruled and the note admitted, the material parts of which read as follows:

"On or before the first day of March, 1907, without grace, I promise to pay to the order of O. W. Wolters, one thousand dollars, value received; with interest at the rate of 6 per cent cent. per annum, from maturity until paid, less tax on land for 1906. ..."

We are of the opinion that the objection to the introduction of the note in evidence was properly overruled by the court. The clause in the note "less tax on land for 1906" constituted in effect an agreement by the defendant to pay the taxes assessed upon the land for that year, when read in connection with the circumstances and contracts made between the parties, and constitutes a new and independent contract or a written modification of the original contract. Section 1256, C. C., provides: "A contract may be explained by reference to the circumstances under which it is made, and the matter to which it relates." The clause in the note, therefore, whether it be regarded as a modification of the original contract or as a new and independent agreement, bound the defendant to pay the taxes on the property conveyed, for the year 1906, and rendered the defendant liable to the plaintiff for the amount of the taxes for that year so paid by him.

It...