Weisser v. Kropuenske
| Decision Date | 20 September 1929 |
| Docket Number | No. 6615.,6615. |
| Citation | 55 S.D. 558,226 N.W. 760 |
| Parties | WEISSER v. KROPUENSKE et ux. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Bon Homme County; R. B. Tripp, Judge.
Suit by Paul F. Weisser against John F. Kropuenske and wife. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.Hitchcock & Sickel, of Mitchell, for appellant.
W. L. Redden, of Tyndall, and Bogue & Bogue, of Parker, for respondents.
In 1920, respondent John F. Kropuenske, purchased from appellant a quarter section of land in Charles Mix county, for which he agreed to pay $16,425.99. He paid $3,500 in cash, assumed and agreed to pay two mortgages on the land given by appellant, one for $5,000 and the other for $2,800, and gave a third mortgage to appellant securing his note for $4,812. On September 29, 1924, Kropuenske found himself unable to pay the taxes on the land and the interest on the three mortgages. As a result of a conference on that day between appellant and Kropuenske, appellant drew up a contract, the provisions of which were as follows:
“Whereby the party of the first part [appellant] agrees to release a certain mortgage in the amount of $4,812 on the following described land: *** For and in consideration of the above the party of the second part [respondent] agrees to divide equally all property, securities and moneys received on the above described land subject to two mortgages now of record.
“The above agreement will be in force upon the renewal of the two mortgages now of record, to be signed by John Kropuenske and wife.”
This contract was signed by both parties. Thereafter respondent and wife signed additional coupons and an extension agreement, extending the first mortgage of $5,000 for five years, and had an oral agreement with the owner of the second mortgage of $2,800 also extending it for five years. He thereafter paid the first interest coupon so signed by himself and wife, and at the time of trial had paid $167 on the second interest coupon, which had come due just a few days prior thereto, and had made arrangements to pay the balance of said interest coupon in full. He had paid the interest due on the second mortgage up to the time of trial of the action, and the taxes on the land. The income from the land was insufficient to pay the interest on the two mortgages and the taxes on the land. He still owned the land, which it had been impossible to sell for more than the amount of the two mortgages.
In February, 1926, appellant sued respondents on their note for $4,812. Respondents, in their answer, admitted the execution of the note, but alleged its satisfaction by the written agreement of September 29, 1924. The trial court found the facts substantially as above stated, and concluded that the note on which the suit was predicated had been superseded by the written contract of September 29, 1924, and that consequently appellant's complaint should be dismissed.
[1][2] Appellant contends that the renewal of the two mortgages over the signature of respondents was a condition precedent in the contract of September 29, 1924, and, said condition precedent not having been fulfilled by respondent, the contract itself was not in force. Appellant calls attention to the last paragraph of the contract:
“The above agreement will be in force upon the renewal of the two mortgages now of record, to...
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