Stockwell v. City of Sioux Falls

• Decision Date: 20 July 1941
• Docket Number: 8387
• Citation: 299 N.W. 453,68 S.D. 157
• Parties: EMILY STOCKWELL, Respondent, v. CITY OF SIOUX FALLS, Appellant.
• Court: South Dakota Supreme Court

68 SD 157, 299 NW 453 (1941)

EMILY STOCKWELL, Respondent v. CITY OF SIOUX FALLS,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Lucius J. Wall, Judge.

#8387–Reversed.

Roy D. Burns, Sioux Falls, SD

Attorney for Appellant.

E. E. Sullivan, Sioux Falls, SD

Attorney for Respondent.

Opinion filed Jul 20, 1941, Rehearing Denied Sep 20, 1941.

POLLEY, P.J.

On the 28th day of November, 1938, plaintiff, being the owner of a small tract of ground in the City of Sioux Falls, entered into an option contract executed in the name of the City of Sioux Falls by one Bert T. Yeager, whereby plaintiff, for a valuable consideration, agreed to sell and convey to the defendant the said tract of ground upon the payment by the defendant to the plaintiff of the sum of $2,000 on or before the 10th day of January, 1939. On said tract of ground was located a gravel pit, and the record shows that it was for the purpose of acquiring this gravel pit that defendant was desirous of purchasing said tract of ground. For several months prior to the date of said option defendant had been buying sand and gravel from plaintiff which the defendant at its own expense dug and removed from said gravel pit. Upon obtaining the said option contract the defendant greatly increased its facilities for digging and removing the said sand and gravel from such gravel pit and during the time between the 28th day of November, 1938, and the 10th day of January, 1911)9, defendant dug and removed from said gravel pit more than 12,000 cubic yards of sand and gravel of the value of $1,009. The removal of such sand and gravel by the defendant was done with the knowledge and consent of the plaintiff, but no arrangements of any kind, express or implied, were entered into, to the effect that defendant was to pay plaintiff the market price of said sand and gravel in addition to the amount defendant was to pay for the entire tract with said sand and gravel still in the ground. Prior to obtaining the said option the defendant had been paying plaintiff for the sand and gravel it had removed from the said gravel pit at the rate of 8 cents per cubic yard.

On the 10th day of January, 1939, defendant pursuant to the terms of said option agreement paid plaintiff the sum of $2,000 and plaintiff executed and delivered to defendant a deed of conveyance of the said tract of land. Prior to the execution of the said option agreement it had been the practice by plaintiff and defendant for plaintiff to file her claim against the City monthly for the sand and gravel that had been removed by the City during the preceding month. No claim was filed in January or February for sand or gravel that had been taken from the pit after the giving of the option; but some time during the month of March, 1939, plaintiff filed a claim with the City Auditor for the value of an the gravel and sand that defendant had removed from the gravel pit between the time of the execution of the option on the 28th day of November, 1938, and the 10th day of ...