Krueger v. Dodge

• Decision Date: 25 October 1901
• Citation: 87 N.W. 965,15 S.D. 159
• Parties: KRUEGER v. DODGE et al.
• Court: South Dakota Supreme Court

87 N.W. 965

15 S.D. 159

KRUEGER v. DODGE et al.

Supreme Court of South Dakota

October 25, 1901

Appeal from circuit court, Grant county; A. W. Campbell, Judge.

Action by William C. Krueger against A. C. Dodge and another, as executors of the estate of John S. Proctor, deceased. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Geo. S Rix and E. T. Young, for appellants.

Thomas L. Bouck and H. H. Potter, for respondent.

FULLER P. J.

Before the commencement of this action to enforce performance of a contract to sell real estate, plaintiff tendered the full amount alleged to be due according to an account stated, and demanded a deed. Judgment was entered on findings of fact and conclusions of law favorable to plaintiff, and the defendants appeal.

It is admitted that on the 13th day of January, 1891, respondent and John S. Proctor, since deceased, entered into a valid contract by the terms of which the latter bound himself to convey to the former the land in controversy in consideration of 20,000 bushels of wheat, the delivery of not less than 3,000 bushels of which was to be made, respectively, on the 1st day of October, 1892, 1893, 1894, 1895, 1896, 1897, 1898. "And in default of said yearly payments and deliveries of said three thousand bushels of wheat on said days of payment and delivery as aforesaid, should said party of the first part extend the time of payment and delivery thereof, said party of the second part, for himself, his heirs, executors administrators, and assigns, agrees to pay interest at the rate of eight per cent. per annum on all such deferred or extended payments and deliveries from the time the same shall be extended until the same is paid, and which amount shall be determined by the deficiency or difference of the amount or quantity of three thousand bushels of wheat to be delivered as aforesaid and the amount or quantity actually paid and delivered at the rate or price of seventy-five cents per bushel for each and every bushel of wheat of such deficiency." The most important question presented for our consideration is whether the following finding of fact is sustained by the evidence: "That on the 8th day of October, 1896, a settlement was had between the plaintiff and said John S. Proctor, and upon such settlement an account stated was had between them, whereby it was agreed and determined between said plaintiff and said John S. Proctor that on the said 8th day of October, 1896, said Krueger was indebted to said John S. Proctor for deferred payments on said contract up to that date in the sum of $2,348.75 for principal and $784.62 for interest on same, making in all the sum of $3,133.37." Being an illiterate foreigner, and unable to read and write the English language, respondent kept no account of the wheat delivered from year to year and, aside from some authenticated copies of receipts which Mr. Proctor had given him, and which appellants were permitted to introduce in evidence, there is nothing to challenge, even by way of inference, the accuracy of the foregoing finding. That respondent was delinquent to some extent on the 8th day of October, 1896, and appeared with Mr Proctor at the office of S. S. Lockhart, an attorney at law, for the purpose of ascertaining the actual amount then due according to the terms of the written contract, is conceded. During the lifetime of Mr. Proctor there was no controversy between the parties to this contract, and concerning what took place at the office of Mr. Lockhart that witness testified, in effect, that the parties readily arrived at an agreement as to how the account then stood; that the aggregate amount of wheat in default and then demandable was figured and agreed upon, and its contract value, with interest at 8 per cent. per annum, was calculated by himself and Mr. Proctor, who furnished the data upon which all computation was based. Mr. Lockhart testified in part as follows: "Mr. Proctor and Mr. Krueger came into my office, and Mr. Proctor stated that heretofore they each had an attorney, but this time they had agreed to come before me, and settle up there. They arrived at an agreement as to how the account stood at the time, and interest was there computed by himself and Mr. Proctor. Also figured interest up to that time on the account under the contract,--on the contract for the sale of his farm. Q. What did you do, Mr. Lockhart? A. I computed the interest from the data given to me by them. Q. Do you remember what year or years that included? A. No; I could not recollect what years it included. They gave me the data, but I don't recollect what years, or where the payments started from, or the account started from. Q. It was more than one year? A. Yes; it was several accounts. Q. Several years? A. Yes, sir. Q. State whether or not you made any memorandum in writing that day. A. I did make a memorandum at the request of Mr. Krueger, I think, after we got through with the work. Q. You may state how you came to make any memorandum in writing. A. After we had completed the computation, Mr. Krueger requested me to make a memorandum so he would know how they stood, or know what the result was. Q. You may state, Mr. Lockhart, whether or not the memorandum you made on that paper was a correct memorandum of the adjustment of the accounts made that day. A. Yes, sir. Q. You say that you had figured them over? A. I figured it over from the different accounts for the different years given to me by Mr. Krueger and Mr. Proctor, and Mr. Proctor also figured a part of them. I could not say whether or not he figured all of them at that time, but we practically agreed. Q. You may state how the figures that Mr. Proctor made, if any, correspond with the figures that are on that paper. A. They are practically the same, within a few cents more or less. All the difference was what might have been caused by either of us not carrying out the fractions." Cross-examination: "Q. You say you don't remember just what was figured, and the only thing you remember absolutely about it is this balance from some data (or some premise which is mutual), was reached, and this balance was struck? A. That was reached as the balance struck between them. Q. Whatever they figured? A. This is a thorough account, as I understood it, on that...