Speck v. Anderson, s. 14201

• Decision Date: 29 May 1984
• Docket Number: Nos. 14201,14229,s. 14201
• Citation: 349 N.W.2d 49
• Parties: Donald SPECK and Joan Speck, Plaintiffs and Appellants, v. George ANDERSON, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 49

349 N.W.2d 49

Donald SPECK and Joan Speck, Plaintiffs and Appellants, v. George ANDERSON, Defendant and Appellee.

Nos. 14201, 14229.

Supreme Court of South Dakota.

Argued April 17, 1984.

Decided May 29, 1984.

Charles Rick Johnson of Johnson, Eklund & Davis, Gregory, for plaintiffs and appellants.

John B. Wehde of Benson, Wehde, Fosheim & Haberstick, Huron, for defendant and appellee.

HEEGE, Circuit Judge.

This case concerns the validity and enforceability of an option agreement to purchase 800 acres of land in Buffalo County, South Dakota. It is now before this court for a second time.

In Speck v. Anderson, 318 N.W.2d 339 (S.D.1982), this court held that an option which was not to be exercised until after the death of the seller's wife did not require the wife's signature, and remanded the case to the circuit court for trial on the issue of the validity and enforceability of the option agreement.

On remand, the circuit court held that the option agreement had not been signed by the seller but that his signature had instead been forged. We affirm the trial court's decision.

The plaintiffs and appellants, Donald and Joan Speck, are husband and wife. Together they operate a farming and ranching business in Buffalo County. Since 1972, they have rented some 800 acres of grass and farmland from Howard and Wilma Anderson.

The Specks claim that Howard Anderson signed an option agreement at the Speck home on December 8, 1976. This agreement gave the Specks until March 1, 1981, to exercise the right to purchase the 800 acres at a price of $100 per acre. Marvin Speck and Chester Robinson, the brother and brother-in-law of Donald Speck, claim that they signed the option agreement as witnesses.

Howard Anderson died in February 1977, and his wife followed him in death in September of 1978. In January of 1979, the Specks brought an action for specific performance of the option agreement against the defendant and appellee, George Anderson, Howard Anderson's son and the devisee under Howard's will.

Although at trial two handwriting experts testified that they believed Howard Anderson's signature to be genuine, the defendant's handwriting expert opined that the signature of Howard Anderson was a traced forgery. It was this testimony that the trial court chose to believe. We cannot say that this was error. This court does not try such controversies de novo. It was for the trial judge to select from the conflicting evidence that which he would believe. Estate of Podgursky, 271 N.W.2d 52 (S.D.1978). There is sufficient testimony to support the trial court's determination.

On appeal, appellants raise several alleged errors. First, they contend that because there is a claim of fraud, clear, satisfactory and convincing evidence is required. This contention is laid to rest by this court's decision in Aschoff v. Mobil Oil Corp., 261 N.W.2d 120, 125 (S.D.1977), which has since been followed in General Electric Credit Corp. v. M.D. Aircraft Sales, Inc., 266 N.W.2d 548, 550 (S.D.1978); Golden v. Oahe Enterprises, Inc., 295 N.W.2d 160, 164 n. 2 (S.D.1980); and Jennings v. Jennings, 309 N.W.2d 809, 811-12 (S.D.1981). These cases state that the burden of proof on an issue of fraud is by a preponderance of the evidence, without the additional burden of clear, satisfactory and convincing evidence. In the case at bar, the trial court's decision that Howard Anderson's signature on the option agreement was a forgery is supported by a preponderance of the evidence.

Second, appellants complain that the testimony given by two of appellee's witnesses should not have been considered because proper notice of their appearance was not given to appellants prior to the time of trial. At the time that appellee's deposition was taken, appellee's counsel said he would "provide names of any such witnesses before we go to trial" if he uncovered any. Appellants claim that the appearance of these witnesses without prior notice was in violation of this statement.

The identities of these two witnesses were disclosed to appellants'...