Way v. Johnson
| Decision Date | 03 April 1894 |
| Citation | 58 N.W. 552,5 S.D. 237 |
| Court | South Dakota Supreme Court |
| Parties | B.T. WAY, Plaintiff and appellant, v. JULIUS A. JOHNSON & C). and John Sutherland, Defendants and respondents. |
This was an action to recover the sum of $1,000, paid upon the following memorandum of agreement, which is set out in the complaint:
“Pierre, Dakota, 10-51889. Received of W. H. Brown, for B. T. Way, $1,000, to apply on the purchase of Lots Nos. 13 to 18, inclusive, block 3, in Original Plat addition to the city of Pierre, according to the recorded plat thereof - Price $10,000. Terms, $5,000 cash on delivery of deed; balance as follows, to-wit: Assume mortgage incumbrance of $2,500, and give mortgage for $2,500, due in one year; deed to be delivered and money paid on or before 10 days. It is understood that time shall be given for registered mail to go to and return from Vermont. Deed and mortgage and notes to be deposited in bank awaiting return from draft. Sale subject to approval of owner.
[Signed]
Julius A. Johnson & Co.”
It is further alleged in the complaint, in substance, that the plaintiff never completed the said purchase; that on or about October 30, 1889, the said defendants notified the plaintiff that they had elected to revoke and abandon said contract and agreement, and that no deed of the property described in the contract was delivered by said defendants; that the defendants still retain the $1,000 paid by plaintiff on account of said contract, and refuse to pay the same, although payment has been duly demanded. The defendants answered, denying certain allegations of the complaint, and setting up a counterclaim for breach of the contract on the part of the plaintiff. The case was tried to, a jury, and at the conclusion of the evidence on the part of the plaintiff the court, on motion of the council for the defendants, directed a verdict for the defendants. The errors assigned in substance are that the court erred in not striking out certain evidence of witness Brown, given on his cross-examination, and in directing a verdict for the defendants. The facts proved or admitted are, in substance, as follows: That upon the execution and delivery of the memorandum agreement, and the payment of the $1,000 therein specified, and as a part of the same transaction, the defendants caused to be executed a warranty deed of the property described in the contract, and deposited the same as an escrow with the Citizens’ Bank of Pierre; and that at the same time the plaintiff executed his promissory note for $2,500 and a mortgage to secure the same upon the property described, and deposited the same as an escrow with the said bank. That said deed, note, and mortgage were still held as an escrow when this action was commenced, and were so held at the time of the trial of the same. That on or about October 31, 1889, the defendant Sutherland wrote to plaintiff, who was then in Dell Rapids, in this state, and who received the same about November, 2. 1889, a letter of which the following is a copy:
“Pierre, South Dakota
Oct. 31st, 1889.
B. T. Way, Esq., Dell Rapids, Dak.
Dear Sir:
Inasmuch as you have failed to put up the money on purchase of lots in block 3, Original Pierre, we desire to say that we consider the money forfeited that has been paid on it. We regret very much that you have not been able to carry out your part of the bargain, but should be pleased to show you any favors that might aid you in making up what you have lost, as you say, through the failure of others to come up with the money. If you are able to raise the money for the purchase of this property before we have sold it, should be disposed to allow you to purchase it at the old price, and in that event would allow you a discount of $1,000. We, however, do not wish to make any promises that would bind ourselves, or tie up the property.
Yours truly,
John Sutherland.”
It was admitted that said Sutherland was a member of the firm of Julius A. Johnson & Co. It was further shown that plaintiff has neither paid nor tendered to the defendants, or to either of them, or to the Citizens’ Bank, the balance of the money specified in said contract, namely, $4,000; that the plaintiff, subsequently to the receipt of said letter, and on or about November 20, 1889, assigned the said contract to one Bunker, a resident of the state of Vermont, and at the same time conveyed to him by quitclaim deed the property described in said contract; that plaintiff has never demanded his note and mortgage of the bank, nor notified the said bank to return to defendants the deed deposited there, nor that the contract was at an end; that plaintiff considered that he had an equity in the property to the extent of $1,000, even after he received the letter; that the defendants refused to take $1,000 as payment for an option, but insisted that it must be paid as a part of the purchase price of the property, and was to be forfeited in case the contract was not carried out by the plaintiff.
It is stated in the appellant’s abstract that it was admitted that Mr. Sutherland conveyed the said property to one Loofborrow about November 8, 1889. This is denied in the amended abstract of the defendants and respondents. An examination of the original bill of exceptions, made necessary by such conflicting statements in the abstracts, leads us to the conclusion that neither the assignment nor deed referred to, nor any record of the same, was introduced, received, or read in evidence. That statement in the appellant’s abstract will therefore be disregarded.
On the trial, W. H. Brown, a witness called on behalf of the plaintiff, on cross-examination was asked the following question:
“Was anything said about the paying back of the $1.000 to anybody, and what was said on the subject?
A. Mr. Sutherland said that, of course if he, [plaintiff] did not get around with the money at that time, why, he would forfeit the thousand dollars.”
The appellant moved to strike out the answer as being incompetent, and not proper cross examination, and for the further reason that it tended to vary the express terms of a written contract. The motion to strike out the evidence was properly overruled, as the answer was responsive to the question. The objection should have been made to the question itself. This court fully considered this subject in Wendt v. Railroad Co., 57 N.W. 227, and in that case we said:
“A party cannot sit by and permit an incompetent or...
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