Russell v. Elliott
| Decision Date | 08 February 1922 |
| Docket Number | 4933. |
| Parties | RUSSELL et al. v. ELLIOTT et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brown County; Frank Anderson, Judge.
Action by C. A. Russell and others against J. A. Elliott and others for specific performance of a contract to convey real estate. Judgment for plaintiffs, and defendants appeal. Affirmed.
Waddel & Dougherty, of Webster, and Van Slyke & Agor, of Aberdeen for appellants.
Williamson Williamson & Smith and George H. Fletcher, all of Aberdeen for respondents.
Action to compel specific performance of contract to convey real estate. Findings of fact, conclusions of law, and judgment were in favor of plaintiffs, and defendants appeal.
If this allegation is true, the judgment should be reversed, and the action dismissed.
The undisputed evidence shows that within the time provided by the contract Russell and Lingren gave notice that they would take the property, and as part performance on their part gave Elliott and Woods each a check for $500, and requested the abstracts of title to the property. Upon examination of the abstracts several defects in the title were disclosed. The abstracts were returned to Elliott and Woods for the purpose of having the defects removed and the abstracts corrected. Some of the defects were removed, but Russell and Lingren still objected to the title, and further corrections were made. These transactions ran over a period of something like three weeks when one of the defendants went to plaintiffs' office, laid the two checks that had been paid them by plaintiffs on a desk in the presence of plaintiff Lingren, and said the deal was off. Plaintiffs had already informed defendants that they were willing to accept the title as it then was, and said plaintiff told defendant that they (plaintiffs) expected to go through with the deal. These acts on the part of plaintiffs do not tend to show an intent on their part to abandon the contract.
The trial court found and the evidence shows that at the time plaintiffs gave notice that they intended to carry out the terms of the contract, and at all times since that date, they were ready, able, and willing to so carry out the terms thereof, and that the defendants were acting in bad faith in attempting to avoid said contract.
At the time the contract was entered into defendants were carrying fire insurance on the buildings on the property involved, payable to the defendants, to the amount of $8,000; but no reference whatever to insurance was made in the contract. This insurance remained in force until April 7, 1920, when the buildings were destroyed by fire. Prior to the trial of this action defendants collected $4,000 of the insurance money and received $325 for certain material that was saved from the fire. These facts were set up in a supplemental complaint, and in the judgment entered by the trial court a credit of said amounts was allowed to the plaintiffs on the purchase price of the property. Defendants claim that this part of the judgment is erroneous and ask a reversal of the same. This presents a question which, in just this form, has never been passed upon by this court, and one upon which the different courts do not agree. The greater number of the reported cases appear to hold that, if the purchaser completes the purchase, he is entitled to a credit on the purchase price for the amount that has been paid to the vendor on insurance policies taken out by himself. Skinner, etc., v. Houghton, 92 Md. 68, 48 A. 85, 84 Am. St. Rep. 485; Gates v. Smith, 4 Edw. Ch. (N. Y.) 702; Ins. Co. v. Updegraff, 21 Pa. 513; Reed v. Luckens, 44 Pa. 200, 84 Am. Dec. 425; Ry. Co. v. Spencer, 156 Pa. 85, 27 A. 113, 36 Am. St. Rep. 22; Williams v. Lilley, 67 Conn. 50, 34 A. 765, 37 L. R. A. 150.
In the following cases it is held that the insurance money paid on a policy of insurance taken out by the vendor belong to him free of any trust in favor of the purchaser: Phinizy v. Guernsey, 111 Ga. 346, 36 S.E. 796, 50 L. R. A. 680, 78 Am. St. Rep. 207; Gilbert v. Port, 28 Ohio St. 276; King v. Preston, 11 La. Ann. 95; Rayner v. Preston, 18 Cha. D. (Eng.) 1; Edwards v. West, 7 Ch. D. (Eng.) 858.
It will be seen, however, upon an examination of these cases, that the decision is determined by the facts involved in each particular case rather than by any general principle. In White v. Gilman, 138 Cal. 375, 71 P. 436, the plaintiff under a contract to purchase a vacant lot went into possession and erected a dwelling house thereon. After the house was erected and was being occupied by plaintiff the defendant, who still owned the legal title to the lot without the knowledge of plaintiff, took out a policy of insurance on the building. While this policy was in force the building was destroyed by fire, and defendant collected more on the policy than the amount due from plaintiff on the purchase price of the lot. When plaintiff learned these facts he demanded a deed without offering to pay the balance due on the contract,...
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