Rapp v. Petrick, 7360

• Decision Date: 31 July 1933
• Docket Number: 7360
• Parties: HENRY S. RAPP, Respondent, v. GEORGE D. PETRIK, Appellant.
• Court: South Dakota Supreme Court

61 S.D. 426

249 N.W. 736

HENRY S. RAPP, Respondent, v. GEORGE D. PETRIK,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Davison County, SD

Hon. Frank B. Smith, Judge

#7360—Reversed

Hitchcock, Sickel & Whiting, Mitchell, SD

Attorneys for Appellant.

Miller & Shandorf, Mitchell, SD

Attorneys for Respondent.

Opinion Filed Jul 31, 1933

POLLEY, Judge.

Plaintiff and defendant entered into a written contract whereby defendant agreed to sell plaintiff a piece of real property in the City of Mitchell. The contract was made on the 18th day of October, 1930. The agreed price of the land was $5,000, $50 of which was paid when the contract was signed and the remaining $4,950 was to be paid in cash on or before the 1st day of November, 1930, and “possession was to be given November 1st when the terms of this contract have been complied with.” Defendant was to furnish an abstract showing a marketable title in himself and a warranty deed conveying said title to plaintiff, which deed and abstract were to be deposited in the Commercial Trust & Savings Bank of Mitchell, “where the deal is to be closed.” Said bank was authorized to deliver said papers and close the deal when the terms and conditions of the contract had been fulfilled. And said contract further provided that:

“It is mutually agreed that if the said second party fails or refuses to make any of the payments as above specified, he shall forfeit the amounts already paid, and the said second party further agrees to claim no interest in or title to the above described property by virtue of payments which have been made, it being expressly agreed that the payments made are for the purpose of obtaining an option to purchase said property, on the terms and conditions above named, and that time is the essence of this contract.”

Plaintiff did not wait until the 1st of November to enter into possession of the property, but took immediate possession thereof when the contract was signed. Just how he obtained possession of the property does not appear in the record. He had no right under the terms of the contract to possession of the property prior to the 1st day of November, 1930, and it does not appear that he had consent from the defendant to take possession of the same. Plaintiff continued to occupy the premises for a period of about two weeks, when, on the 29th day of October, 1930, defendant’s wife served on the plaintiff a notice to quit and vacate the said premises within three days after the service of said notice. On the following day plaintiff, without any objection on his part, vacated said premises and surrendered the same to the defendant. He told defendant’s wife, however, that he thought a part of the $50 he had paid should be returned to him, as $50 for the use of the property for the time he had occupied the same was too high. Defendant, himself, was out of the state at the time the notice to vacate was served on the plaintiff, and plaintiff testified that at the time of the service of said notice, defendant’s wife told him that they (defendant and wife) did not intend to go through with the deal and that plaintiff could not have the property. This was positively denied by defendant’s wife. No more appears to have been said about the matter until the 17th day of November, 1930, when plaintiff sent to defendant a letter advising defendant that plaintiff was “insisting on going thru with the contract, as per the provisions thereof.” This letter further advised defendant that unless plaintiff heard from him within ten days plaintiff would feel obliged to start suit and ask to recover the amount paid and damages under the contract. Immediately upon receipt of this letter, defendant replied by letter in which he called the attention of the plaintiff to the fact: “The contract calls for $4950.00 to be paid on or before November 1st. 1930.” And further called the attention of the plaintiff to the fact that he (plaintiff) had never offered or tendered payment of said sum, and that if he was able and ready to complete the contract to advise defendant at once as he was ready to go thru with the deal. This letter also called plaintiff’s attention to the fact that he (plaintiff) had no right to possession of the property prior to the 1st of November, but that he could have possession of the property any time he made the payment called for by the contract. To this letter plaintiff made no reply, but immediately thereafter started this action for damages.

The case was tried to the court without a jury. Plaintiff had judgment for $500 damages for breach of the contract and for $25, being one-half of the cash payment made by plaintiff on the purchase price of the property. The other half of said cash payment was allowed to defendant as the rental value of the property while it was occupied by the plaintiff. From such judgment and an order denying a new trial, defendant appeals.

Plaintiff claims that he was able and willing to pay the balance due on the purchase price of the property on the 1st day of November; while it is the contention of the defendant that plaintiff was wholly without funds with which to complete the said purchase. Plaintiff does not claim that he had the money with which to complete the transaction, but said...