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Rice & Benson, for Appellant.

The court finds that the performance of the contract as claimed by plaintiff was complete on plaintiff's part in every respect. This fact points unmistakably and unerringly to the agreement or promise as the inducement for such performance, and cannot be accounted for in any other manner. John Berg, Executor, Etc., v. August Moreau, Executor, Etc., 9 L. R. A. (N. S.) 157 (Mo.); Thrall v. Thrall, 19 N. W. 353 (Wis.). We cite, further: Pomeroy's Equity Jurisprudence, Sec. 1404; J. I. Case Threshing Machine Co. v. Farnsworth, (S. D.) 134 X. W. 819, last paragraph second column at page 822; C. C. Secs. 2336, 2339, 2340; Lothrop v. Marble, 12 S. D. 511; McCollom v. Mackrell et al., 13 S. D. 262; Sutton v. Hayden, 62 Mo. 114; Lathropy. Marble, supra; Steensland v. Noel, 134, 120 N. W. 207 (S. D.)

Warren & Shoemaker, for Respondents.

A contract of this character must be established by evidence of an undoubted character which is positive, definite and unequivocal. Evidence of oral declarations, especially regarding a contract made with a decedent, is not of that character and is insufficient to support a decree for the specific performance of the contract. Greer et al. v. Goudy, (III.) 51 V. E. 623; Griffin v. Keese, (X. Y.) 80 X. E. 367; Clark v. Clark, 13 N. E. 553.

There is no evidence whatever that Mrs. Kroeger promised to do, or did, anything under this contract. True, she cared for the deceased two weeks, but there is no evidence that what she did was under the contract or in any way referable to it. She was conducting a hotel and no doubt Mr. Smith went there as any other guest. Nelson v. Lybeck, 21 S. D. 223; Collins v. Collins, 114 N. W. 1069.

The burden is on the plaintiff to prove her contract clearly and positively in all of its terms and a mere preponderance of the testimony is not sufficient. Dewey v. Spring Valley Land Co., (Wis.) 73 N. W. 565.

MCCOY, J. There were findings of fact, conclusions of law, and judgment in favor of defendant, from which plaintiff appeals. Plaintiff claims that one Edward F. Smith was about the ist day of May, 1911, the owner of certain real property situated in Flandreau; that said Smith was a man without family and in ill 31-Vol. 31, S. D.

health, suffering from some loathsome disease which caused his death on about the 3d day of June, 1911; that on the ist day of May plaintiff and said Smith entered into an oral contract, whereby plaintiff agreed to take said Smith into her family and to personally nurse and care for him, and furnish him all necessary food Guring the remainder of his natural life; and that, in consideration of said agreements on the part of plaintiff, the said Smith agreed to grant and convey to plaintiff the said real estate. This claim on the part of plaintiff was denied by defendants, who are the administrator and heirs of said Smith. There was no direct testimony of said agreement, or of the express terms thereof, plaintiff being an incompetent witness. There was much testimony tending to establish plaintiff's claim, consisting mostly of statements and admissions made by said Smith, after the alleged making of said agreement, to the effect that he had given said property to plaintiff. It appears that plaintiff was engaged in operating a boarding house or hotel, and that some time after the alleged agreement said Smith did occupy a room in plaintiff's hotel, and to some extent was cared for by her. On the other hand, there were circumstances tending to controvert the claim of plaintiff. There was some testimony tending to show that after the alleged making of said agreement plaintiff rented said property from said Smith; that for some portion of the time he continued to reside alone in said property and care for himself, or procured others, not the plaintiff, to look after and care for him; that this condition continued to exist until about May 19th, about which time his health became suddenly worse, and he was removed to the hotel. There was also some testimony tending to show that after the alleged making of said contract said Smith repaired said real property and himself furnished the materials therefor. The trial court, among other things, found that the evidence introduced by plaintiff was not sufficient to prove the said contract between plaintiff and Smith.

[1] This court on numerous occasions has held that findings of a trial court will not be disturbed when based on conflicting testimony, unless there is a clear preponderance of evidence against the finding. In this case we are of the opinion there was sufficient evidence on the part of defendants to sustain the said findings.

[2] While courts do specifically enforce oral contracts of the kind here involved, when there has been complete or partial performance thereof, still, the establishment of the very existence of such a contract is one of the most vital questions to be determined. The existence of contracts of this character should be established by clear and convincing testimony.

Finding no error in the record, the judgment of the circuit court is affirmed.



(141 X. W. 366.) Appeal-Findings—Conflicting Evidence-Affirmance.

Findings of trial court based upon conflicting evidence will not be disturbed, unless against the clear preponderance of the evidence.

(Opinion filed May 6, 1913.) Appeal from Circuit Court, Stanley County Hon. LEVI MCGEE, Judge.

Action by the Independent Publishing Company against Stanley County, to recover for certain county printing.

Gaffy, Stephens & Fuller, for Appellant.
It is the contention of the appellant, Stanley county:

1. That neither the board of county commissioners nor George D. Mathieson had any authority at law to authorize the publication of a notice that tax deed would issue to Stanley county.

2. That by reason of said fact, no indebtedness could be incurre 1 by the county for a publication authorized by an officer who had no power to authorize it.

3. That since no legal indebtedness was incurred by Mathieson's having ordered this publication, the action of the board of county commissioners in allowing this bill was void and created no indebtedness against the county.

We cite: Secs. 2203, 2297, Pol. Code; Chap. 246, Laws 1911; Abbott on Mun. Cor., Vol. 2, pp. 1577, 1598; 1 Am. & Eng. Ency. of Law, 973; People v. Bank of North America, 75 N. Y. 547; Halbert et al. v. State, 22 Ind. 134; Grannis v. Commissioners, 83 X. W. 495; Gerley v. City of New Orleans, 41 La. Ann. 75; State ex rel. Whatcomb County v. Purdy, Treasr., 14 Wash. 343; Newell et al. v. Board of Co. Comrs., 8 S. D. 452; Tamm et al. v. Lavalle, 92 11l. 263; State ex rel. Harney v. Hastings, 12 Wis. 596; Mitchell v. Board of Co. Cmrs., 24 Minn. 459; Bemis v. Board of Co. Comrs., 23 Minn. 73; Board of Supervisors v. Catlett's Executors, 86 Va. 162; Cumberland Co. Supervisors v. Edwards, 76 Ill. 544; Endion Imp. Company v. Evening Telegram Co., 104 Wis. 432; State ex rel. Dickson V. Williams, Mayor, 6 S. D. 119; Throop on Pub. Off., Par. 21 ; 29 Cyc. 1435; Troy Mining Co. v. White, 10 S. D. 482; Currie v. School Dist., 27 N. W. 922; Secs. 1847, 1849, Pol. Code; Davis v. King, 50 Am. St. Rep., 118.

J. II. Johnson, and Frank D. Bangs, for Respondent.

The property of the county was not involved, but only the process of getting the property. After the property is sold for taxes, and tax certificates have been issued to the county, then the property belongs to the county. Then the question is as to whether or not the board of county commissioners have not control, under section 830 of the Political Code, which says: “They shall have power to make all orders respecting the property of the county.” Potts v. Bennett et al., 140 Ind. 71.

The evidence is undisputed to the effect that the notices published by the Independent Publishing Company were issued by the county treasurer. Then, even if the court should find, notwithstanding the circuit court found that the county treasurer gave and directed publication of the notice, that the circuit court was in error, and abused its discretion in its findings of fact, and that, as a matter of fact, the county board did direct and manage the publication, as claimed by the appellant, it seems to the respondent that said section 830 makes such an order good, as the lots involved, and, the certificates held by the county are the property of the county.

We cite, further: 3 Cyc. 221, Sec. 4; Brown v. Comrs., 31 V. E. 811; In re Tray Press Co., 88 N. Y. S. 117.

McCOY, J. Plaintiff and respondent is the publisher of a newspaper known as “The Fair Play," published at Ft. Pierre, Stanley county. Under the provisions of section 2207, Pol. Code, as amended by chapter 246, Laws of 1911, the respondent published some 24 notices of application for issuance of tax deed, and presented to the board of county commissioners of Stanley county a bill for publishing such notices, and which bill was allowed by such board. . Thereafter, upon the application of certain taxpayers of said county, an appeal from the action of the said board in allowing said bill was taken to the circuit court of said county, and a triai in the circuit court resulted in an affirmance of the said action of the board of county commissioners. The contention of the appellant is that under the provisions of section 2207, Pol. Code, as amended by chapter 246, Laws of 1911, no one was authorized to make such publication, or direct in what newspaper the same should be published but the county treasurer, and that the county treasurer in said county never in any manner authorized the plaintiff to publish said notices, and that the said publications were made wholly without authority of the said treasurer, and therefore not a proper or legal charge against the said county.

On the trial of said cause the court, among other things, made the following finding of fact: “That during the months of January, February, March, April, May, and June, 1911, the office of the county treasurer of Stanley county was behind in its work, and the same was not being kept up, and the treasurer was late several months in the issuing of his tax receipts and other work of his office. That on or about the ist day of March, 1911, the county treasurer was called upon by the board of county com- ' missioners as to what steps were being taken, or about to be taken, in regard to taking of tax deeds to said lots, and the treasurer stated that he believed that it was the duty of the county auditor to attend to this work; later on, at the March meeting of the board of county commissioners, the said county treasurer informed the board that it would be impossible for him or his force of employes to do the necessary work required to prepare the riotices, and to issue tax deeds; that more help was required in his office. The board of county commissioners then appointed one of their number by resolution duly entered on the records of the minutes as a committee to act, with the state's attorney, to attend to the work necessary in securing the tax deeds. The Honorable George D. Mathieson, of the board, was made a committee by the commissioners. The lots for which tax deeds were to be taken were all situated in the city of Ft. Pierre, and the lien for taxes

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