Amert v. Ziebarth Construction Co.

SABERS, Justice

(specially concurring).

I concur in the result and wish to stress the following in respect to the continuing problem of applying prejudgment interest law, SDCL 21-1-11, to the facts. First, the law is known but difficulties continue to exist in applying that law to the multiple and diverse facts which arise from time to time in these cases. Secondly, in the absence of an offer or tender to pay on their part, defendants should not be able to claim that they are prevented by law or by the plaintiff creditor from paying. Thirdly, the right to recover damages capable of being made certain by calculation was not vested in the plaintiff in this case until September 28, 1982, and then in the amount of $95,505. This is so even though the building was built in 1977 and 1978 and the rust was noticed as early as the spring of 1979. At that time, plaintiffs damages were capable of being made certain by calculation by reference to prevailing markets for labor and materials. All of the above is in line with the letter and the spirit of Meyer v. Dixon, 369 N.W.2d 658 (S.D.1985).