Van Abel v. Wemmering
| Decision Date | 07 August 1915 |
| Docket Number | No. 3769.,3769. |
| Citation | 153 N.W. 911,36 S.D. 31 |
| Parties | VAN ABEL v. WEMMERING. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hyde County; John F. Hughes, Judge.
Action by John Van Abel against G. F. Wemmering. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded for new trial.M. C. Cunningham, of Highmore, and A. W. Wilmarth, of Huron, for appellant.
M. Harry O'Brien, of Highmore, for respondent.
In a cause of the same title this court, in an opinion appearing in 33 S. D. 544, 146 N. W. 697, held that the giving of a mortgage upon the property by the vendor after the time fixed for the performance of the contract of purchase and sale deprived the vendor of his remedy of specific performanceof the contract. The amended complaint in that action contained two causes of action-one for the reformation of the contract by changing the township number in the description of the land from 113 to 112; the other for a specific performance of the reformed contract. This court in concluding its opinion said:
“No opinion is herein expressed as to the legal rights of the parties in relation to said contract. The views herein expressed relate solely to the right and remedy of specific performance as applied to the particular circumstances of this case.
The judgment and order appealed from are reversed, and the cause remanded, with directions to enter judgment on the findings in favor of defendant.”
The remittitur in that cause was filed in the trial court on May 14, 1914. On May 23, 1914, the plaintiff brought an action for damages for breach of contract. The case was tried by the court together with a jury, and the plaintiff was awarded damages in the sum of $3,168.14. From the judgment and order denying a new trial, defendant appeals.
[1] In conformity with the opinion it would have been proper for this court in its former judgment to have directed the trial court to enter judgment sustaining that part of the findings of fact and conclusions of law which related to the reformation of the contract, and for a decree of reformation, but dismissing the cause of action which asked for specific performance of the contract. Doubtless this court would have directed the entry of such judgment had respondent within the 30 day period after decision made application for such relief. But what did this court direct? It directed the entry of judgment upon the findings in favor of defendant. Such judgment to be entered could only be a judgment of dismissal of the whole action, embracing as well the cause of action for the reformation of the contract as the cause of action for specific performance. So that, if a judgment in the trial court had been entered pursuant to the remittitur, the contract would have stood unreformed. To entitle the plaintiff to recover damages for its breach, he would have been obliged to have the contract reformed. Castle v. Gleason, 31 S. D. 590, 141 N. W. 516;Id., 35 S. D. 98, 150 N. W. 895.
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