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BUSINESS LAW CHAPTER 9 THIRD PARTY CONTRACTS (CONTRACT LAW) CASES FOR ANALYSIS;
specific performance by virtue of the court; gratiutious

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52 N.W.2d 302 Page 1
74 S.D. 316, 52 N.W.2d 302
(Cite as: 74 S.D. 316, 52 N.W.2d 302)

court in doubt. SDC 37.4602(6).

Supreme Court of South Dakota. [2] Specific Performance 358 121(3)

CRAWFORD et ux.
v. 358 Specific Performance
CARTER. 358IV Proceedings and Relief
No. 9243. 358k118 Evidence
358k121 Weight and Sufficiency
March 4, 1952. 358k121(3) k. Sufficiency in General.
Rehearing Denied April 18, 1952. Most Cited Cases
Evidence sustained trial court's finding that there
Quiet title action wherein defendant counterclaimed existed between parties a specifically performable
for specific performance of an oral contract to con- agreement to convey land. SDC 37.4602(6).
vey. The Circuit Court, Beadle County, W. W.
Knight, J., rendered judgment granting the relief [3] Specific Performance 358 28(1)
sought in the counterclaim and the plaintiff ap-
pealed. The Supreme Court, Smith, J., held that the 358 Specific Performance
record sustained the trial court's findings. 358II Contracts Enforceable
358k27 Certainty
Affirmed. 358k28 In General
358k28(1) k. In General. Most Cited
West Headnotes Cases
A court of equity does not look with favor on ob-
[1] Specific Performance 358 121(1)
jections raised on ground of uncertainty of contract
358 Specific Performance sought to be specifically enforced, after matter has
358IV Proceedings and Relief advanced beyond stage of contract, and that which
358k118 Evidence has been done in reliance on contract not only
358k121 Weight and Sufficiency makes precise act which remains to be done clearly
358k121(1) k. Clearness and Positive- ascertainable but leaves complaining party without
ness. Most Cited Cases adequate remedy unless contract be enforced. SDC
37.4602(6).
Specific Performance 358 121(2)
[4] Specific Performance 358 29(2)
358 Specific Performance
358IV Proceedings and Relief 358 Specific Performance
358k118 Evidence 358II Contracts Enforceable
358k121 Weight and Sufficiency 358k27 Certainty
358k121(2) k. Degree of Proof Re- 358k29 Description of Subject-Matter
quired. Most Cited Cases 358k29(2) k. Description of Lands in
The correct rule in specific performance cases is General. Most Cited Cases
that contract with all its material terms and condi- Any infirmity in descriptive portion of contract to
tions must be proved by evidence which appears convey land which might have prevented such con-
clear and satisfactory to mind of trial court, and tract being specifically performable was cured
which, even though conflicting, does not leave when vendor put purchaser in possession. SDC
37.4602(6).

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

52 N.W.2d 302 Page 2
74 S.D. 316, 52 N.W.2d 302
(Cite as: 74 S.D. 316, 52 N.W.2d 302)

[5] Specific Performance 358 49.2 [8] Specific Performance 358 49.2

358 Specific Performance 358 Specific Performance

358II Contracts Enforceable
358k48 Consideration
358k49.2 k. Adequacy and Sufficiency.
Most Cited Cases
(Formerly 358k49(2))
The codified rule that inadequacy of consideration
is sufficient, standing alone, to warrant denial of
specific performance was adopted for the reason
that it was believed that equities of such situation
did not justify employment of extraordinary remedy
of specific performance. SDC 37.4603(1).
358II Contracts Enforceable
358k48 Consideration
358k49.2 k. Adequacy and Sufficiency.
Most Cited Cases
(Formerly 358k49(2))
Where purchaser had fully performed his part of
agreement and would suffer loss which could not be
accurately estimated if vendor did not perform his
part of agreement, asserted inadequacy of consider-
ation for vendor's performance would not warrant
denial of specific performance.

[6] Specific Performance 358 49.2 [9] Specific Performance 358 126(1)

358 Specific Performance 358 Specific Performance

358II Contracts Enforceable 358IV Proceedings and Relief
358k48 Consideration 358k125 Relief Awarded
358k49.2 k. Adequacy and Sufficiency. 358k126 Performance of Contract in Gen-
Most Cited Cases eral
(Formerly 358k49(2)) 358k126(1) k. In General. Most Cited
Where there is no pecuniary standard by which to Cases
measure consideration for contract, and it has been In purchaser's suit for specific performance of con-
fully performed by party furnishing such considera- tract to convey land, consideration for which had
tion, it will be specifically enforced without inquiry been the anticipated convenience for vendor in hav-
into adequacy of consideration if failure to grant ing purchaser's place of business near at hand, judg-
such relief would operate as fraud upon plaintiff. ment of trial court requiring purchaser to pay $50 to
SDC 37.4603(1). vendor as condition to granting relief sought, after
it had become obvious that, because of differences
[7] Contracts 95 50 which had developed between parties, vendor was
not actually experiencing benefit he had anticip-
95 Contracts
ated, did not constitute making a new contract for
95I Requisites and Validity
parties, but on contrary was a commendable effort
95I(D) Consideration
to shape decree so as to do justice.
95k49 Nature and Elements
95k50 k. In General. Most Cited Cases [10] Appeal and Error 30 994(3)
“Consideration” is price voluntarily paid for
promissor's undertaking, but nothing is 30 Appeal and Error
“consideration” that is not regarded as such by both 30XVI Review
parties; and while expectation of result often leads 30XVI(I) Questions of Fact, Verdicts, and
to formation of contract, neither expectation or res- Findings
ult is cause or meritorious occasion requiring mutu- 30XVI(I)1 In General
al recompense in fact or in law. SDC 37.4603(1). 30k994 Credibility of Witnesses
30k994(3) k. Province of Trial

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

52 N.W.2d 302
74 S.D. 316, 52 N.W.2d 302
(Cite as: 74 S.D. 316, 52 N.W.2d 302)
Court. Most Cited Cases
Where credibility of witnesses enters into findings,
they will not be disturbed unless evidence clearly
preponderates against them.
[11] Homestead 202 181(3)
202 Homestead
202IV Abandonment, Waiver, or Forfeiture
202k181 Evidence
202k181(3) k. Weight and Sufficiency.
Most Cited Cases
In purchaser's suit for specific performance of con-
tract to convey land, evidence sustained trial court's
finding that vendor's wife had had knowledge of ar-
rangement between her husband and purchaser and
that by her conduct she should be estopped to assert
homestead rights in premises.
**303 *318 Irving R. Crawford, Huron, for appel-
lants.
Royhl & Benson and Fosheim & Blue, Huron, for
respondent.
SMITH, Judge.
In this action, brought by Joe Crawford, to quiet his
title to a one-acre tract of land, the defendant L. A.
Carter counterclaimed for specific performance of
an oral contract to convey. A judgment for specific
performance was reversed by this court for the reas-
on that the family homestead of Crawford em-
braced the acre, and Mrs. Crawford was not a party
to the proceeding. Crawford v. Carter, 72 S.D.
514, 37 N.W.2d 241. After Mrs. Crawford had
been added as a party defendant Carter filed and
served his cross complaint praying specific per-
formance of the above mentioned agree-
ment. Subsequently, this court interpreted its judg-
ment, and granted Crawford's application for a writ
of mandamus commanding the trial court to try and
determine the issues as made up by the amended
pleadings. State ex rel. Crawford Hanson, S.D., 41
N.W.2d 646. A trial of the issues resulted in a
second judgment for Carter *319 directing a con-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
veyance to him of the property in question. Mr. and
Mrs. Crawford have appealed. We preface consid-
eration of their substantial assignments of error
with a brief explanatory statement.
The farm home of the Crawfords is located a little
more than a mile north of Huron along the west
side of Highway No. 37. It originally included 99
acres. The acre in controversy was added sub-
sequently. It is located immediately south of the
farm buildings along the highway; a tax title thereto
was acquired by Crawford after it had been aban-
doned as the site of a radio tower. The farming op-
erations included the raising of hogs, in connection
with which Crawford trucked garbage from the city
of Huron, and this acre was used as a hog pasture.
For a number of years prior to March 1946 Craw-
ford had been accustomed to go to Carter's place of
business in Huron for truck and tractor repairs, and
for his gas and oil. During that month negotiations
were carried on between them looking toward the
possible location of Carter's **304 business on the
Crawford farm. From evidence in sharp dispute the
court found that in consideration of Carter's prom-
ise to erect the necessary structures and relocate his
entire business on the radio tower acre, Crawford
promised thereafter to convey the acre to Carter;
that thereupon Carter went into possession and at a
cost of over $5,500 located his business on the acre
and in so doing erected a concrete block garage ad-
equately equipped with repair and welding tools, an
office building, gasoline pumps on a concrete is-
land, a house, water pipes, and driveways, and that
although Carter had completely performed the
agreement on his part, Crawford had failed and re-
fused to deed the acre to Carter. Predicated princip-
ally on these findings the court decreed specific
performance.
In Steensland v. Noel, 28 S.D. 522, 134 N.W. 207,
210, this court quoted from Pomeroy on Contracts,
2d Ed., § 136, as follows: ‘In order that a court of
equity shall exercise its power to decree a specific
execution, where there has been a part performance,
the contract itself must be clear, certain, and unam-
52 N.W.2d 302
74 S.D. 316, 52 N.W.2d 302
(Cite as: 74 S.D. 316, 52 N.W.2d 302)
biguous in its terms, and must either be *320 admit-
ted by the pleadings, or proved, with a reasonable
degree of certainty, to the satisfaction of the court.
If therefore, upon all the evidence given by both
parties, the court is left in doubt as to the entire
contract, or even as to any of its material terms, it
will not grant the remedy although a partial per-
formance of something has been sufficiently
proved.’ Both phases of this requirement of cer-
tainty of proof are argued by the Crawfords as their
first two propositions. They argue that (a) there is
no such convincing proof of the entire contract as is
required to invoke the extraordinary remedy of spe-
cific performance and (b) if an agreement as a
whole was established all of its terms were not suf-
ficiently certain to make the precise act which is to
be done clearly ascertainable. SDC 37.4602(6).
[1][2] An agreement resulted from the described
negotiations of Crawford and Carter. Whether it
was an agreement to convey or for a tenancy was
the central issue of fact. We do not understand that
the Crawfords contend the essential certainty of
proof was not achieved merely because there was a
conflict in the evidence. They accept the pro-
nouncement of Steensland v. Noel, supra, as fol-
lows: ‘The correct rule in this class of cases is that
the contract with all its material terms and condi-
tions must be proved by evidence which appears
clear and satisfactory to the mind of the trial court,
and which, even though conflicting, does not leave
the court in doubt.’ Cf. Johnston v. Eriksson, 71
S.D. 268, 23 N.W.2d 799. We have reviewed the
record with that principle in mind. We content
ourselves with a statement of our conclusion. Coun-
sel for the Crawfords predicates uncertainty of
proof upon instances where agreement between wit-
nesses seems too perfect, and upon inconsistencies
in the testimony. However, when the whole evid-
ence is examined in the light of the conduct of the
parties after the agreement was reached, we are
convinced that solid support appears for an abiding
conviction on the part of the trier of the fact that a
promise to convey was exchanged for a promise to
locate the Carter business on the Crawford prop-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
erty. After hearing and seeing the witnesses, two
able and experienced trial judges have separately
concluded that such an agreement was consum-
mated.
*321 [3][4] The contention that there was insuffi-
cient proof of the terms of the agreement but rear-
gues the contention made on the former appeal that
the verbal understanding failed to describe the
property to be conveyed. In response to the original
argument we said, ‘That which was uncertain be-
came certain as soon as plaintiff put defendant in
possession of a plot of ground, and the infirmity in
the contract to which plaintiff points was thereby
cured. * * * A court of equity does not look with
favor on objections raised on grounds of uncer-
tainty after a matter has advanced beyond the stage
of contract and that which has been done in reliance
on the contract not only makes the precise act
which remains to be done clearly ascertainable but
leaves the complaining party without an adequate
remedy unless the contract be enforced. Pomeroy,
Specific Performance of Contracts, § 145, p. 378.’ [
72 S.D. 514, 37 N.W.2d 243.] In view of the fact
that the complaint**305 alleges and the answer ad-
mits that Carter is in possession of the acre, we dis-
cern no warrant for a different holding on this ap-
peal.
[5][6] The adequacy of the consideration received
by the Crawfords to invoke the remedy of specific
performance is the next matter questioned. The an-
cient rule that inadequacy of consideration is suffi-
cient, standing alone, to warrant denial of specific
performance, which was championed by Chancellor
Kent in Seymour v. Delancey, 6 Johns Ch., N.Y.,
222, and thereafter was codified by the Field draft
of the Civil Code as § 1894-1, appears in our stat-
utes as SDC 37.4603(1). Cf. O'Hara v. Lynch, 172
Cal. 525, 157 P. 608. The section reads as follows:
‘Specific performance cannot be enforced against a
party to a contract in any of the following cases: (1)
If he has not received an adequate consideration for
the contract.’ Obviously, this rule was adopted for
the reason it was believed that the equities of such a
52 N.W.2d 302
74 S.D. 316, 52 N.W.2d 302
(Cite as: 74 S.D. 316, 52 N.W.2d 302)
situation did not justify the employment of the ex-
traordinary remedy of specific performance.
However, there is an exception to the rule codified
by this section. The annotator, 65 A.L.R. 81, treats
of that exception in these words, ‘There is to the
general rule requiring an adequate consideration the
exception that where there is no pecuniary standard
by which to measure the consideration for a con-
tract, and *322 it has been fully performed by the
party furnishing such consideration, it will be spe-
cifically enforced without an inquiry into the ad-
equacy of the consideration, if the failure to grant
such relief would operate as a fraud upon plaintiff.’
[7][8] The record reveals that the motive which in-
duced Crawford to contract was so that he could en-
joy the convenience of having Carter's service sta-
tion and repair shop right at hand and thus avoid
handling his gas and oil in barrels and cans and the
moving of machinery to him in Huron for repairs.
All dealings between the parties ceased after Carter
demanded a deed. Hence Crawford is not enjoying
the benefits he anticipated, and counsel argues that
the Crawfords have suffered a positive detriment
because of the proximity of the Carter business to
their home. In dealing with this argument, it is im-
portant to identify the consideration received by
Crawford. That which Mr. Justice Strong wrote in
Philpot v. Gruninger, 14 Wall. 570, 81 U.S. 570, 20
L.Ed. 743, contributes to analysis: ‘* * * Nothing is
consideration that is not regarded as such by both
parties. It is the price voluntarily paid for a prom-
isor's undertaking. An expectation of results often
leads to the formation of a contract, but neither the
expectation or the result is ‘the cause or meritorious
occasion requiring a mutual recompense in fact or
in law.’ * * *'
The consideration for which Mr. Crawford contrac-
ted, according to the finding of the court, was the
establishment of the Carter business on the radio
tower acre. At a cost to Carter of considerable ef-
fort and over $5,500, he delivered that considera-
tion. Frequently the adequacy of consideration can-
not be judged. ‘As Hobbes says, the value of all
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
things contracted for is measured by the appetite of
the contractors.’ 12 Am.Jur., Contracts, § 122, p.
615. In this instance, Crawford contracted for such
an immeasurable consideration from Carter. If,
after performance on his part, that which was prom-
ised in exchange is not forthcoming Carter will
have suffered a loss which cannot be accurately es-
timated. The exception supra was developed to per-
mit equity to intervene in such extraordinary cir-
cumstances and thus avoid a fraud. The parties
were placed in their present unfortunate plight by
wrongdoing of Crawford. We *323 are satisfied
that SDC 37.4603 was not intended to lessen the
power of equity to thwart such a fraud. We hold the
contention that specific performance cannot be had
because the consideration received by Crawford
was inadequate to be inadmissible.
[9] Closely connected to the matter last considered
is the contention that the court made a new contract
for the parties. As they were reaching a close of the
testimony on the second trial, Carter offered to do
equity by giving assurance that his employees
would respond to Crawford's request for service.
Thereafter, and perhaps at the suggestion of the tri-
al court, Carter **306 offered to pay to Crawford
the sum of $50, being the highest value placed on
the acre as of the time of the contract. The judg-
ment of the court required such a payment from
Carter. Thus the claim that the court made a new
contract for the parties.
Whether such an offer was required of Carter as a
matter of equity need not be decided. We think the
contention that the court made and enforced a new
contract is untenable.
It seems obvious that, recognizing the differences
which had developed between the parties, and that
such differences would discourage dealings
between them and hence Crawford would not actu-
ally experience the benefits he anticipated as a res-
ult of performance of the contract, the trial court
exacted this payment from Carter as a condition to
the relief for which he prayed, in a commendable
effort to shape its decree so as to do justice. It is
52 N.W.2d 302 Page 6
74 S.D. 316, 52 N.W.2d 302
(Cite as: 74 S.D. 316, 52 N.W.2d 302)

difficult to perceive wherein Crawford was preju-

diced.

[10][11] In substance the trial court found that Mrs.

Crawford acquiesced in the verbal contract, inten-
ded to abandon her homestead rights in the acre,
and by her conduct in encouraging the improve-
ments installed by Carter is estopped to assert a
homestead right in the premises. The Crawfords
question the sufficiency of the evidence to support
these findings and conclusions. The critical ques-
tion is whether Mrs. Crawford had knowledge of
the arrangement between her husband and Carter.
There is testimony, if believed, which warrants an
inference of that fact. We cannot say that the trial
court's belief of these witnesses *324 was unreas-
onable. It is settled that where credibility of wit-
nesses enters into the findings they will not be dis-
turbed unless the evidence clearly preponderates
against them. Houck v. Hult, 63 S.D. 290, 258
N.W. 142, Scott v. Liechti, 70 S.D. 89, 15 N.W.2d
1, and Johnson v. Olson, 71 S.D. 486, 26 N.W.2d
132. Cf. Rhode v. Farup, 67 S.D. 437, 293 N.W.
632. The record, in our opinion, sustains the court's
findings.

The remaining contentions have been considered

and are deemed not to warrant discussion.

The judgment is affirmed.

All the Judges concur.

S.D. 1952
Crawford v. Carter
74 S.D. 316, 52 N.W.2d 302

END OF DOCUMENT

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