Knapp v. Breeding, 9726
| Decision Date | 25 March 1959 |
| Docket Number | No. 9726,9726 |
| Parties | Kenneth KNAPP, Plaintiff and Respondent, v. Charies Duane BREEDING, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Ramon A. Roubideaux, Ft. Pierre, for defendant and appellant.
John P. Bushfield, Miller, for plaintiff and respondent.
The defendant appeals from a judgment decreeing foreclosure of a real estate mortgage.
On October 14, 1952, the defendant executed and delivered to the plaintiff a note in the sum of $1,315 together with a real estate mortgage securing payment of the note. The property described in the mortgage consisted of a house and lots in the City of Miller. The note became due on October 15, 1953.
Defendant testified that in the latter part of November 1954 he orally leased the house located on the mortgaged premises to the plaintiff for the use of plaintiff's employee, Fred Meek. Defendant further claims they agreed on a monthly rental of $50 which was to be credited each month on the $1,315 note and by reason of this credit the note was fully paid. Plaintiff denies he ever leased this house from the defendant or ever discussed the rental of it with him.
Meek testified that in November of 1954 he had the following conversation with the defendant concerning the rental of this house. Meek further testified he had no understanding plaintiff was renting the house for him. That he rented it and was responsible for the payment of the rent. After this conversation with defendant, Meek moved in and continued to occupy this house. The plaintiff was aware of this occupancy. Meek paid no rent nor was he asked to pay any by defendant.
From this evidence the court made the following finding:
'That on, or about December 1st, 1954 the plaintiff discussed with the defendant the possibility of renting the dwelling located on this mortgaged property for and on behalf of an employee of the plaintiff, namely Fred Meek and did make an oral agreement with the defendant relative to the occupancy by Fred Meek of said dwelling house and did rent such dwelling house on a month to month basis from December 1, 1954 at an agreed rental of $25.00 per month, which rental was to be credited against the balance due on the note. * * *'.
The court further found that after crediting the $25 per month on the note there remained $942.36 unpaid.
The sole complaint of the defendant...
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