McPherson v. Fargo

Citations

• 10 S.D. 611
• 74 N.W. 1057
• 1898 S.D. LEXIS 49

Syllabus

<p>1. Where a vendor’s contract for the sale of real estate acknowledges the receipt of a consideration, he is estopped to deny the same for the purpose of defeating his contract.</p> <p>2. In an action by a purchaser to compel specific performance by a vendor of his contract of sale, the question of whether or not the purchaser assented to the terms of the contract is one of law for the court to determine from the facts in the case.</p> <p>3. The terms of a sale of realty agreed on between a vendor and purchaser were embodied in a written agreement, executed by the vendor, and left with the purchaser with the understanding that it should be signed by him also. It was not signed, but was accepted and placed on record by the purchaser. Held, that his omission to sign the same, whether by inadvertence or otherwise, did not relieve him from liability under the agreement.</p> <p>4. Gomp. Laws, $ 3617, providing an agreement for the sale of realty must be in writing, and subscribed by the party to be charged, does not relate to the purchaser, who becomes bound to pay the price by the acceptance of the deed or contract, but only requires the vendor to sign to be charged, where there is not a part performance.</p> <p>5. Comp. Laws, § 4630, providing that a party who has signed a written contract may be compelled specifically to perform it, though the other has not signed it, if the latter has performed, or offers to perform, applies to a vendor of realty who has executed to his purchaser a contract of sale, the conditions of which the purchaser who did not sign the same offers to perform.</p> <p>6. Where the terms of a contract of sale were agreed upon between a vendor and purchaser, and the same was signed by the vendor, and left with the purchaser, with the understanding that he should sign it also, but no .time for his execution of the same was fixed, before the vendor can withdraw he must first request the purchaser to execute the agreement, and give him a reasonable t