Shumway v. Kitzman

• Decision Date: 31 January 1912
• Citation: 134 N.W. 325,28 S.D. 577
• Parties: SHUMWAY v. KITZMAN.
• Court: South Dakota Supreme Court

134 N.W. 325

28 S.D. 577

SHUMWAY v. KITZMAN.

Supreme Court of South Dakota

January 31, 1912

Appeal from Circuit Court, Spink County; Alva E. Taylor, Judge.

Action by George Shumway against Mike Kitzman. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

E. W Fiske and Callaghan & Granger, for appellant.

Bruell & Morris, for respondent.

WHITING J.

This action was brought by the plaintiff and respondent to enforce specific performance of an alleged contract for the purchase and sale of certain lands in Spink county. In his original complaint, the plaintiff alleged an oral contract. This complaint having been demurred to, plaintiff asked and was granted leave to serve and file an amended complaint. In this amended complaint, he alleged a contract, without stating whether the same was oral or in writing. The plaintiff was required to make his complaint more specific, and did so by alleging a contract in writing, entered into on or about September 25, 1909. Defendant admitted the ownership of the premises, but denied the contract. The cause was tried to the court without a jury, findings and conclusions in favor of the plaintiff were made, a decree in conformity therewith entered, and it is from such decree or judgment that this appeal is taken. There being no question raised as to the sufficiency of the assignments of error, or as to the sufficiency of the specifications of the particulars wherein the evidence is claimed to be insufficient to support the findings of fact, the cause is presented to us upon its merits.

The evidence offered and received was solely that offered by plaintiff, and there is practically no conflict therein. A summary of such evidence and of the proceedings upon the trial is as follows:

Before offering any writing, purporting to evidence the contract sued upon, plaintiff, over proper objection as to its competency, testified in regard to a conversation had between himself and defendant in the fall of 1909, and prior to September 29th. He stated that defendant offered to sell him the land in question-there being 480 acres-at $35 per acre and that after some conversation, wherein defendant insisted upon payment for 100 acres of plowing that had been done defendant finally consented to throw in such plowing without charge. There is no claim that this offer to throw in the plowing was in any manner evidenced by a writing; nor is it claimed that plaintiff at that time accepted the offer. Plaintiff testified he advised defendant that he would try and make arrangements, and thought that he would take the place. Plaintiff lived at Donald, S. D., and defendant at Rochester, Minn. On September 29th plaintiff sent a letter to defendant, in which he states, among other things: "I have made arrangements to get the money necessary to make the deal, and if you still think the same as you did Saturday night, I will buy your place. That would be at $35 per acre, and throw in the plowing." In answer to this, on October 2d, a letter was written by defendant's stenographer, signed by the stenographer in the name of defendant, and sent to plaintiff. The receipt in evidence of this letter was objected to, upon the ground that the same was not signed by the defendant, but, upon admission by defendant that the stenographer was directed to write the letter, and that defendant knew its contents, and that it was written, signed, and mailed with his knowledge, it was received in evidence, though there was no evidence to show that the letter was signed in the presence of defendant. This letter is, in part, as follows: "In reply to yours of September 29th, in regard to my farm, you can have the same at $35 per acre, payments same as we agreed, but can't throw in any plowing. I would want for the plowing whatever the price is per acre in that country. *** In case of sale, please let me know by return mail, so I can send all papers necessary to the Doland State Bank for your inspection." In answer to this letter, plaintiff wrote defendant, upon October 5th, as follows: "I have received your letter of the 2nd and in reply will say that I think you ought to do as you agreed on plowing up to the time of agreement. I expected to pay for plowing since that date. I hope you can see it in that light. But if you won't do that I intend the close the deal anyway. So I will send you a check and would like to have you send on the papers to Doland State Bank." The check inclosed with this letter was for $100, and was cashed by defendant.

On October 6th, defendant and wife executed a deed, running to plaintiff as grantee, describing the land in question, reciting a consideration of $16,800, and reciting that the land was subject to two mortgages, one of $4,000, and one of $1,500, which mortgages grantee assumed and agreed to pay. This deed was sent by Callaghan & Granger, attorneys for defendant, to the Doland State Bank, in a letter, dated October 6, 1909, which letter was signed by the attorneys in their own name. Before offering this letter, and two of subsequent date, signed by such attorneys, evidence was received, over objection thereto, to show that said attorneys were orally authorized to write whatever they did write, and to send the papers they sent. It is undisputed that they had no written authority whatsoever. All the letters written by said attorneys were objected to, when offered in evidence, upon the ground "that it has not been shown that the authority of Callaghan & Granger was in writing, signed by the party sought to be charged, and for the further reason that they are incompetent, immaterial, and irrelevant and inadmissible under the pleadings and that the evidence at this time shows that their authority was verbal." The deed was objected to as incompetent, immaterial, and irrelevant, no part of the written contract alleged in plaintiff's complaint, and, because not having been delivered, it would not become a part of a written contract. The deed and letters were received in evidence. The plaintiff inspected the deed after it reached the bank. The letter of October 6, 1909, written by said attorneys to the bank, was as follows: "At the request of Mr. M. Kitzman, Jr., we hand you herewith warranty deed from Kitzman and wife to Geo. W. Shumway, which is to be delivered to Mr. Shumway upon the payment by him to you of thirty-nine hundred dollars, and exchange thereon and the delivery of a good and sufficient second mortgage on all of said premises executed by Shumway and wife to Micheal Kitzman, Jr., for the sum of $7,300, payable as follows: $1,000 in one year; $1,000 in two years; $1,000 in three years; $2,000 in four years and $2,300 in five years, with interest, payable annually, at the rate of six per cent. per annum on each of said sums. Should Shumway prefer said $7,300, may be divided into five equal payments and the notes drawn accordingly instead of as above stated. Will you kindly record the mortgage and send notes and mortgage to Mr. Kitzman, with draft for the above amount. In addition to this Mr. Shumway is to pay for the plowing thereon the sum of $1.25 per acre." Upon October 7, 1909, plaintiff wrote defendant in part as follows: "You have your payments arranged differently than you and I talked of. You told me that if I paid you the $4,000.00 cash you would give me all the time I wanted to pay the balance in. Now I see you expect a payment each year, just a little in line with that deal on the plowing don't you think?" October 8, 1909, Callaghan & Granger wrote to the bank in part as follows: "Mr. Shumway seems to be kicking on the payments which we wrote were to be provided for in the mortgage, and if he does not wish the mortgage drawn, with payments as therein stated, you may give him such reasonable time as he may ask, not exceeding ten years, and have the notes and mortgage drawn accordingly." November 6, 1909, said attorneys telegraphed to bank as follows: "Do not deliver deed Kitzman to Shumway, but return at once to us. Letter follows." This telegram was received in evidence without objection. On the same day, said attorneys wrote the bank as follows: "Pursuant to our message of this morning you are instructed not to deliver to Geo. W. Shumway the deed from Micheal Kitzman, Jr., and wife, to him under any circumstances. Mr. Shumway paid Mr. Kitzman $100, and we enclose you herewith draft for that amount, which is to be delivered to him when the deed is sent us. If you have not already done so, kindly return us the deed at once." The $100 referred to in said letter was delivered by the bank to plaintiff, and afterwards by plaintiff deposited in said bank to the credit of defendant. Upon receipt of the telegram, the bank notified plaintiff of its instructions. The plaintiff then procured $3,900 and deposited the same in the bank to defendant's order, and demanded that the deal be closed. The plaintiff never tendered or deposited any notes or mortgages. The bank retained the deed, neither delivering same to plaintiff nor returning it to defendant. There was some further testimony inn relation to abstracts, condition of title, and other matters, but the foregoing covers all that is material herein.

The only questions, as we view the case, are: Was there ever a contract, valid under the statute of frauds? If so, what were the terms thereof? Did the plaintiff ever comply with such terms?

Section 1311, Revised Civil Code, reads as follows: "No agreement for the sale of real property, or of an interest therein, is valid unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent thereunto authorized in writing; but this does not abridge the power of any court to compel the specific performance of any...