Taylor v. Neys

• Decision Date: 12 July 1899
• Citation: 79 N.W. 998,11 S.D. 605
• Parties: JOHN C. TAYLOR, Plaintiff and appellant, v. PETER NEYS et al., Defendant and .
• Court: South Dakota Supreme Court

11 S.D. 605

79 N.W. 998

JOHN C. TAYLOR, Plaintiff and appellant,

v.

PETER NEYS et al., Defendant and . South Dakota Supreme Court Appeal from Circuit Court, Moody County, SD Hon. Joseph W. Moored, Judge Affirmed Aikens & Judge, Sioux Falls, SD Attorney for appellant. Keith & Warren, Sioux Falls, SD Attorney for respondent. Opinion filed July 12, 1899

FULLER, J.

Answering the complaint in this action to cancel a bond for a deed and by way of counterclaim, the defendant charged plaintiff with a breach of the terms of such instrument, and alleged full performance on his part, but consented to a cancellation thereof upon the restoration of $1,100, which he had already paid, as a part purchase price of the premises therein described. In reply to the counterclaim, a former suit between the same parties was pleaded in bar, and, on this appeal from a judgment for. the full amount claimed by defendant, plaintiff insists that the trial court erred in permitting the introduction of parol testimony to show what was really adjudicated. at the earlier trial. The essential facts pertaining to the first suit, which was entitled “Peter Neys v. John C. Taylor,” are these: The summons is in the usual form for the recovery of money, and it is in the complaint alleged that the respondent Neys paid $1,100 as part purchase price of the premises. and under the contract went into actual possession thereof, thus remaining until appellant, Taylor, maliciously and fraudulently ousted both himself and family, although he had performed all that the contract required, “and has at all times been ready and willing to carry out and complete said contract on his part.” The answer of appellant, Taylor, was a general denial, and, upon a verdict in his favor, judgment for dismissal and for costs against Neys was entered, and the above-mentioned summons, pleadings, verdict, and judgment constitute the judgment roll offered by appellant, and received in evidence upon the trial of this cause in support of the plea of res judicata. For the purpose of defeating this plea in bar, by showing that no trial was had upon the merits, the notes of the official stenographer were, over the objections of the appellant, read in evidence, and are in part as follows:

“The defendant moves the court to instruct the jury to return a general verdict in favor of the defendant, and against the plaintiff, for the following reasons: … The evidence shows that the plaintiff has never rescinded the contract mentioned in the complaint, and never tendered back to the defendant any compensation for the time while lie had the premises, or compensation for the injury done the same, and has not offered to reconvey, and never did reconvey, his interest in and to the premises. The evidence shows conclusively that he still claims to have an interest in the...