Seim v. Krause

Citations

• 13 S.D. 530
• 83 N.W. 583
• 1900 S.D. LEXIS 183

Syllabus

<p>1. Error in overruling a motion to direct a verdict for defendant, or to dismiss, at the close of plaintiff’s case is waived where defendant fails to renew the motion after all the evidence has been presented.</p> <p>2. Comp. Laws, § 3582, providing that “every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals * * * is void,” does not render invalid a provision in a building contract that the amount to be added to or deducted from the contract price on account of any alterations shall be determined by the architect.</p> <p>3. Under a provision in a building contract that the value of any alterations made as therein provided shall be appraised by the architect, and be added to or deducted from the contract price, the determination of the architect as to the value of such alterations is conclusive on the. parties in the absence of fraud or collusion.</p> <p>4. Under Comp. Laws, §§ 3580, 3581, which provide that every contract by which the amount of damages to be paid or other compensation to be made for a breach of an obligation is determined in anticipation thereof, is to that extent void, except when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage, a provision of a contract for the building of an ordinary-residence that, in case the building shall not be «completed by a date fixed, the con.traclor shall forfeit and pay the sum of $10 per day for the time thereafter r( quired to complete it, is void, unless unusual circumstances justifying it are shown; - and the measure of damages for a delay in completing the building beyond the time fixed by the contract is its reasonable rental value during such time.</p> <p>5. A bill of particulars required from a plaintiff, and served by him, is not admissible,as evidence in support of his cause, of action.</p>