Littlejohn v. Cnty. Line Creamery Co.

• Citation: 85 N.W. 588,14 S.D. 312
• Parties: LITTLEJOHN v. COUNTY LINE CREAMERY CO.
• Decision Date: 02 April 1901
• Court: Supreme Court of South Dakota

14 S.D. 312

85 N.W. 588

LITTLEJOHN

v.COUNTY LINE CREAMERY CO.

Supreme Court of South Dakota.

April 2, 1901.

Appeal from circuit court, Lake county; J. W. Jones, Judge.

Action by N. M. Littlejohn against the County Line Creamery Company. From a judgment in favor of defendant, and from an order denying a new trial, plaintiff appeals. Modified.F. L. Soper, for appellant. Murray & Porter, for respondent.

HANEY, J.

Before the defendant corporation was organized, negotiations between plaintiff and its promoters resulted in the delivery of a deed to about one acre of ground, of which the plaintiff was the owner and one Royce was in possession under a contract of purchase, and upon which the promoters of the corporation had erected a creamery at a cost of not less than $2,500. The value of the land so conveyed has not at any time exceeded $12. The interest of Royce therein was transferred to the plaintiff before this action was commenced. The conveyance to the proposed corporation contains the following language: “The consideration for this conveyance is that the party of the second part shall during the year 1895 erect or cause to be erected upon the above-described premises a building and appliances suitable for a creamery or cheese factory, and continue to operate the same in the business of manufacturing butter or cheese; and, should such business be discontinued at any time during the proper season for conducting the same, the above-described premises shall revert to the parties of the first part, or either of them, as their interest may appear, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining, and all the estate, right, title, interest, claim, or demand whatsoever of the said party of the first part, either in law or equity, either in possession or in expectancy of, in, and to the above-bargained premises and their hereditaments and appurtenances.” This action having been begun to recover possession of the premises, defendant answered by way of counterclaim, alleging that the deed from the plaintiff does not express the contract made by the parties, and demanding that it be reformed to correspond therewith. To the counterclaim a general denial was interposed, and the issues thus presented were tried without a jury, the court concluding that the deed is null and void, that it is not binding upon the defendant, and that it should be canceled and discharged of record. Judgment having been entered, and an application for a new trial denied, the plaintiff appealed.

The only assignments of error referred to in appellant's brief are that the court erred in making findings of fact numbered 8 and 10, and that it erred in its conclusion of law in holding that the deed ought to be canceled. The findings referred to are as follows: “(8) That said Leonard, or said Royce, or any of the parties for whom said Leonard was acting, did not know at any time that said deed contained the condition hereinafter mentioned, and...