Ford v. Hofer

HANSON, J.

(dissenting). The only issue here is whether the trial court’s finding of abandonment is sustained by the evidence. Such finding should not be disturbed by this Court unless it is against the clear preponderance of the evidence viewed in the light most favorable to the decision. Furthermore, “It is not the function of this court to place itself in the position of the trial court to determine the credibility of witnesses and the weight to be attached t,o their testimony and to exercise independent judgment as to whether it would have made the same or similar fact determination. It was with the trial court, as the trier of questions of fact,, to accept as true or reject as untrue testimony given before it, and, the credibility of witnesses ' having entered into the findings, this court will not disturb such findings, unless the evidence clearly preponderates against them.” Houck v. Hult, 63 S.D. 290, 258 N.W. 142, 144.

The intention to abandon in this case can only be gathered by oral conversations and the actions and conduct of the parties. This necessarily involves the credibility of witnesses and the weight and value of their testimony. In this regard, it is obvious the trial Judge was not impressed with some of the plaintiff’s evidence as he points out in his Memorandum Decision that “it conflicted in several instances” with Ford’s earlier testimony.

*266In my opinion there is ample evidence to sustain the finding on abandonment. In the summer of 1957 Hofer advised Ford the contract would be terminated unless the delinquent taxes and one installment on principal was made in the fall. Instead of complying the Fords made a payment of $200 on October 7, 1957. At the time they were apparently hopelessly in default and had moved off the premises. They were delinquent in the payment of three annual principal installments in the amount of $1,300, taxes for the years 1955 and 1956, and insurance premiums. In addition the taxes for the year 1957 in the amount of $286.60 were shortly due and payable.

The Fords had a public auction of their farm goods and machinery on December 21, .1957. About ten days before the sale the parties had a conversation in which Hofer told Ford he was taking the farm back and as Ford was having a sale he would cancel the chattel mortgage and release the note for the reason “if I am taking the land back, I did not expect any more payment”. Hofer then canceled the chattel mortgage and released the note so Ford’s personal property could be sold at public' auction free of such lien. Later on in December Hofer gave Ford a check in the amount of $200 marked “refund on land payment”. This check was accepted and cashed by Ford on December 30, 1957. In this respect the trial court properly found “That said ‘refund’ was received with the knowledge that the defendants Hofer had declared the contract forfeited, and that at said time said plaintiffs had abandoned all interest in said property, and had no intention of continuing with said contract or complying with the terms -thereof”. In March 1958 Hofer sold the land to other persons who entered into possession and started farming operations without objection on the part of the Fords. Subsequent to these sales the court found the Fords “removed from said property and claimed as their own, certain woven wire fence located thereon and also a granary. That they also attempted to sell the dwelling house located thereon under a verbal agreement with the defendants Hofer prior to the commencement of this action that *267if they sold said dwelling house or removed the same from the premises that they could retain the proceeds of sale or have as their own said dwelling house”.

These actions and this course of c'onduct are consistent only with an intention to abandon the contract on the part of the Fords. As the trial court observed “It does not seem reasonable that Ford would take back the $200.00 payment he had made on the land contract, and still maintain he did not intend to give up the contract. Ford may not have known that a Declaration of Forfeiture was filed in the Register of Deed’s office, but the facts certainly bear out Hofer’s contentions that he told Ford he was going to take back the land. Even after Ford discovered in the spring of 1958 that Hofer had sold the farm he did not claim any interest in it. Rather, since the farm was sold at a figure greater than the contract price, it appears Ford wanted to share in the profit”.