Sabow v. Hall, 13595

Decision Date25 August 1982
Docket NumberNo. 13595,13595
Citation323 N.W.2d 861
PartiesJohn David SABOW and Andrea K. Sabow, Plaintiffs and Appellants, v. Patrick R. HALL, Defendant and Appellee.
CourtSouth Dakota Supreme Court

Curt Ireland, Rapid City, for plaintiffs and appellants.

John M. Costello of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for defendant and appellee.

FOSHEIM, Justice.

Dr. John and Andrea Sabow (appellants) sued Patrick Hall (appellee) for specific performance on an offer and agreement to purchase and on a contract for deed. Appellants appeal from an adverse judgment. We affirm.

Appellants own property near Rapid City, South Dakota, which they decided to sell. Appellants executed a power of attorney authorizing Jeremy Gould to act on their behalf to facilitate the sale, and an offer and agreement to purchase the property was signed by appellee and Mr. Gould on September 13, 1980. Unlike the offer and agreement to purchase, the contract for deed was to be personally signed by appellants. Therefore after the contract for deed was signed by appellee and Mr. Gould on September 20, 1980, it was mailed to appellants in Arizona for their signatures. Appellants signed the contract for deed on September 30, 1980.

Appellee contends he was relieved from performance under the contract for deed because appellants made a counteroffer after September 20th which he rejected. Appellants argue that they never made appellee a counteroffer, only a request or inquiry as to whether he would make monthly or quarterly payments in lieu of the annual payments specified in the contract for deed.

Dr. Sabow testified (Andrea Sabow was not a witness) that it was several days after September 30th when he told appellee he had signed the contract for deed; that he did not return the signed contract to appellee but to his (Dr. Sabow's) attorney, who participated in drafting the instrument; that he did not remember when he mailed it; 1 and that he could not say whether appellee ever received a copy of the contract for deed with appellants' signatures on it. Appellants' objections to the proposed findings of fact and conclusions of law do not contradict or conflict with the trial court's findings that appellants' acceptance/signing of the contract on September 30th was not communicated to appellee before he withdrew his offer and that appellants never returned the signed contract to appellee. Appellee testified that he did not learn until October 4, 1980, that appellants had signed the contract for deed. Although disputed by appellants, Mr. Gould and appellee testified that appellants gave appellee until October 3, 1980, to decide whether he would make monthly or quarterly payments and that on October 3rd appellee called Mr. Gould and told him he was not willing to make such payments and therefore the deal was off. Appellee testified that on October 4, 1980, Mr. Gould told him appellants were willing to accept his offer but that he told Mr. Gould he had not changed his mind about revoking.

We believe the counteroffer versus inquiry issue is incidental. The facts clearly indicate that, for whatever reason, appellee withdrew his offer to purchase before he learned appellants had accepted it. Under such circumstances no contract was formed and the trial court correctly refused to enforce the contract for deed. Watters v. Lincoln, 29 S.D. 98, 135 N.W. 712 (1912); A. A. Cooper Wagon & Buggy Co....

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3 cases
  • Rusch v. Kauker
    • United States
    • Supreme Court of South Dakota
    • October 24, 1991
    ...Inc., 442 N.W.2d 229, 232 (1989). See also Permann, 411 N.W.2d at 119. The trial court made its determination primarily on Sabow v. Hall, 323 N.W.2d 861 (S.D.1982). In Sabow, substantial negotiations were also conducted. However, these negotiations were not limited to the final contract for......
  • Amdahl v. Lowe, 17204
    • United States
    • Supreme Court of South Dakota
    • March 20, 1991 an agreement, there is no enforceable contract because there is no unconditional acceptance or no contract at all. Sabow v. Hall, 323 N.W.2d 861 (S.D.1982). Furthermore, Amdahl never signed the memorandum; he did make handwritten notations on the reverse side. Mary Lowe and David Lowe si......
  • Geraets v. Halter, 20509
    • United States
    • Supreme Court of South Dakota
    • October 21, 1998
    ...negotiations evidence absence of intent that the purchase agreement constitutes a final and complete agreement. See Sabow v. Hall, 323 N.W.2d 861, 863 (S.D.1982) (finding no final and complete agreement where negotiations between parties continued after offer and purchase agreement were sig......

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