Meyer Land Co. v. Pecor

• Decision Date: 19 October 1904
• Parties: MEYER LAND COMPANY, Plaintiff and respondent, v. A. PECOR, Defendant and appellant.
• Court: South Dakota Supreme Court

18 S.D. 466

101 N.W. 39

MEYER LAND COMPANY, Plaintiff and respondent,

v.

A. PECOR, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon, J. H. McCoy, Judge Reversed Campbell & Taylor Attorneys for appellant. L. W. Crofoot Attorney for respondent. Opinion filed October 19, 1904

FULLER. J.

Specific performance of the following instrument was decreed in the court below, and the defendant appeals:

“Received of Meyer Land Co. the sum of fifty dollars for the south half 34-123-63 and NE of 3-122-63 for nine thousand dollars $6000 cash and the balance on time at 6 per cent 500 payment per year.

“July 5, 1902.

A. Pecor.” The back of the instrument contains the following instrument: “Fifty to be given back if parties wont take it without the fifth of the crop.”

Appellant’s prompt refusal to convey the premises above described was accompanied by an offer to return the $50 which was duly declined by respondent, and thereupon the same was deposited to the credit of such corporation in a bank of good repute. It requires neither scrutiny nor argument to disclose that the foregoing unilateral memorandum is lax in its terms and lacks mutuality of obligation because respondent, without any fault of appellant. may not only decline to perform, but may recover the $50 paid unless some stranger to the contract purchase the premises upon terms that are undisclosed, with the exception of the crop reservation.

There is nothing to show where the instrument was written, no time is fixed for its performance, and the same is defective in the essential particular that the term of credit is not specified. True, the $3,000 deferred balance is divided into $500 payments, to be made annually after the first falls due according to terms apparently left for future determination, and the phrase “at 6 per cent.” leaves room for contention between the parties as to the time when the interest is payable. However, the most fatal objection to the instrument is that it is entirely silent as to whether the deferred portion of the purchase price is to be evidenced by promissory notes, secured or unsecured, and the fact that respondent tendered six $500 notes, dated July 5, 1902, maturing respectively in one, two, three, four, five, and six years and secured by a mortgage on the premises, in no manner tends to cure this inherent contractual defect.

In the case of Johnson v. Plotner,(1901), we affirm the doctrine that courts will not make contracts for the parties, and quote approvingly from Williams v. Stewart, 25 Minn. 516, as follows:

“The agreement here was for the conveyance of land at the price of $1,153.50. with interest at the rate of 12 per cent. per annum from August 26, 1871, $500 to be paid within one year, upon which the conveyance was to be made, and a mortgage to be given for the remainder of the purchase money. The parties agreed that credit should be given for the remainder, but the terms of such credit, whether it was to be for one, five, or ten years, do not appear. That was evidently left for future negotiations. The court cannot supply the...