Gira v. Harris

Citations

• 14 S.D. 537
• 86 N.W. 624
• 1901 S.D. LEXIS 56

Syllabus

<p>1. A written contract, signed by the defendant only, in which he agrees to convey certain real estate to plaintiff on the payment of a certain sum by a certain date, creates an option, and is not a contract of sale and purchase.</p> <p>2. Under Comp. Laws § 3617, providing that no agreement for the sale of real estate shall be valid unless in writing, subscribed by the party to be charged, and Section 4630, authorizing the specific performance of a written contract, though only signed by the person against whom it is sought to be enforced, if the other party has performed or offers to perform, specific performance of a written contract to sell land for a certain price within a- certain time may be enforced against the landowner when the purchaser has offered to perform his part, though the contract is only signed by the owner.</p> <p>3. Where a landowner contracts to convey land on a payment of a certain sum by a certain time, and the purchaser does not pay the full price at the agreed time, but the owner extends the time till the following morning, an offer then to pay the balance due is a substantial performance which will entitle the purchaser to a specific performance of the contract.</p> <p>4. Under Comp. Laws, § 3538, subds, 2, 3, providing that a written instrument is presumptive evidence of consideration, and placing the burder of showing want of consideration on the person attaching its validity, a written extension of a contract giving an option to purchase real estate is valid, in the absence of evidence showing want of consideration, though no consideration is expressed.</p> <p>5. Where a vendor refuses to convey land according to a contract giving the vendee an option to purchase, damages for use and occupation may be set off against the contract price of the land in a suit by the vendee for specific performence.</p>