Mankey v. Hoyt

• Decision Date: 21 June 1911
• Citation: 27 S.D. 561,132 N.W. 230
• Parties: WILLIAM MANKEY, Administrator of the Estate of Mary Mankey, Plaintiff and appellant, v. H. L. HOYT, Defendant and respondent.
• Court: South Dakota Supreme Court

27 S.D. 561, 132 N.W. 230 (1911)

WILLIAM MANKEY, Administrator of the Estate of Mary Mankey Plaintiff and appellant v H. L. HOYT, Defendant and respondent South Dakota Supreme Court Appeal from Circuit Court, Clark County, SD Hon. George H. Marquis, Judge Affirmed Frank G. Bohri Attorney for appellant. Warren & Warren Attorneys for respondent. Opinion filed June 21, 1911

HANEY, J.

This action was instituted to secure the cancellation of a recorded contract to convey certain real property owned by the plaintiff. The relief sought was granted upon condition that the plaintiff pay to or deposit for the defendant $500, with interest, and certain costs. Being dissatisfied with the conditions, the plaintiff applied for a new trial, which was refused, and she appealed. Subsequently the administrator of her estate was substituted as party plaintiff.

The facts as found by the learned trial judge are substantially as follows: On September 19, 1902, at a farm near Garden City, in Clark county, this state, the decedent and the defendant entered into a written contract, whereby the former agreed, in consideration of $500 (the receipt of which was acknowledged in the contract) and full performance by the latter, which required a second payment of $800, March 10, 1903, to convey to the latter 132 acres of land, situated in that county. The contract contained this clause:

"Provided always, and these presents are upon the express condition that time shall be considered the essence of this contract, and that, in case of the failure of the said H. L. Hoyt in the performance of all or either of the covenants and promises on her part to be performed, the said Mary Mankey shall have the right to declare this contract void without notice to the said H. L. Hoyt, and thereupon to recover all the interest which shall have accrued upon this contract up to the day of declaring it void, as rent for the use and occupation of said premises, and to resell said land to any other purchaser, and hold and retain the moneys paid on this contract by the said H. L. Hoyt as liquidated damages."

At the same time and place the defendant delivered to the decedent the former's personal check upon the Bank of Oto, Iowa, for $500, payable to the order of the latter. Decedent retained the check until September 25, 1902, when she indorsed the same and delivered it to the Garden City Bank of Garden City, for collection, receiving a time certificate of deposit for $500. The check having been forwarded through several banks in "the usual commercial way," and "according to the regular course of business," reached Oto, Iowa, on October 6, 1902, when it was presented for payment and payment refused, owing alone to the insolvent condition of the bank, which, shortly after and on the same day, closed its doors. Nothing has been paid by or for the bank on account of the check to any one, and it remains wholly unpaid. "No protest of said check nor notice thereof has been given or made." When the check was delivered to the decedent, and continuously until its payment was refused, the defendant had on deposit with the bank upon which it was drawn sufficient funds to pay the same. It would have been paid if presented on any day between September 18 and October 6, 1902. On October 25, 1902, the check having been returned to the decedent and she having surrendered the certificate of deposit, the decedent mailed a notice of rescission, stating as the ground therefor that the defendant had failed to pay the $500, as required by the terms of the contract, which notice was received by the defendant in the due course of the mails, and on November 7, 1902, the defendant caused the contract to be recorded in Clark county.

The defendant made no attempt to perform the contract, except to deliver the check as stated, and aside from causing it to be recorded made no attempt to assert any rights under it, before this action was commenced, allowing the decedent unchallenged possession of the property. Between the giving of the notice of rescission and the commencement of this action, the land increased in value from $33, the price agreed upon in the contract, to $45, per acre. On August 15, 1908, and before this action was commenced, the decedent and "an innocent purchaser" entered into a contract for the sale of the land, at the agreed price of $5,850; such purchaser paying decedent $2,400, and entering into possession.

The contention that the trial court was not justified in finding that the check was delivered to the Garden City Bank for collection, because the undisputed evidence shows that the decedent disposed of it and received a time certificate of deposit; which was returned after the check was protested, is not tenable A daughter of the decedent testified:

"Mother kept the check a few...