Sabow v. Hall, 13595

• Decision Date: 25 August 1982
• Docket Number: No. 13595,13595
• Citation: Sabow v. Hall, 323 N.W.2d 861 (S.D. 1982)
• Parties: John David SABOW and Andrea K. Sabow, Plaintiffs and Appellants, v. Patrick R. HALL, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 861

323 N.W.2d 861

John David SABOW and Andrea K. Sabow, Plaintiffs and Appellants, v.Patrick R. HALL, Defendant and Appellee.

No. 13595.

Supreme Court of South Dakota.

Argued May 20, 1982.

Decided Aug. 25, 1982.

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 appelleehe 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. v. Stedronsky Bros. Co., 24...