(dissenting).
That Wiedmer is a pauper or a millionaire — that he can or cannot pay is irrelevant. That he offered to pay in wheat at a nonmarket price is immaterial. The sole question is: In the instant suit, was Wied-mer entitled, in law, by virtue of the terms in the contract, to a Notice of Acceleration or a Formal Demand for the entire sum due under the contract before suit was instituted?
The trial court so held; the Supreme Court thinks so; but both arrive at the conclusion that a botched lawsuit (insufficiency of service of process) constituted a demand for the entire amount. If the first lawsuit was a nullity (and it was), how can it produce good fruit? How can it be used as a basis for further legal action? A lawful notice cannot be birthed from the womb of a quashed Summons and Com*819plaint.1 Strip the majority opinion’s basic tenet from it, namely that Wiedmer received notice of demand from the quashed lawsuit, perforce it is apparent the majority opinion has no sound basis for its decision.
These contracting parties specifically decided the consequences of a breach of contract. Clark Implement was to have certain options upon default. If parties stipulate in a contract to the consequences of a breach of contract, such stipulation is controlling and excludes other consequences, providing it is reasonable. Mid-America Marketing v. Dakota Industries, 281 N.W.2d 419 (S.D.1979). Here, the parties agreed and stipulated that the remedy of acceleration of the entire amount could take place. However, a condition precedent attached and that condition was that, upon default, Clark Implement would have to make demand upon Wiedmer for the entire price before it brought suit or sold the property. Is it not reasonable that before a purchaser’s equity is wiped out or before he finds himself in a lawsuit, he is entitled to be notified that suit will be instituted against him if he does not come up with the entire amount owed pursuant to an acceleration clause?2 Simply put, if acceleration was to be exercised in this case, it had to be exercised by notice. A Notice of Acceleration can help a party cure a default and trigger understanding between parties rather than litigation. We face a litigation explosion, as it is, in our trial and appellate courts today. Clark Implement could have sent out a letter but did not do so. No Notice of Acceleration or demand for payment of the entire price was ever made. This is firmly established in the record of this case.
The trial court determined, which this Supreme Court now affirms, that a notice, by way of demand, had to be made for payment prior to suit. This Court now affirms the trial court’s decision that this notice or demand resulted from Wiedmer’s reading of a Summons and Complaint which was improperly served and thereafter quashed and set aside. Therein, do I peg analytical exception to the rationale of the majority opinion. You cannot, by implication, extend or restrict a contract to mean something other than that which was intended by the parties. Kohlman v. Cahill, 301 N.W.2d 664 (S.D.1981). And you cannot resurrect a lawsuit which has been declared to be a nullity, and build from it a good and sufficient legal notice in law.
In closing, the benefits of acceleration are great for he who accelerates, but it creates a tremendous burden upon those who must abide by the acceleration. Surely, if notice or formal demand is a right under a contract as a condition precedent, it should govern; the burden of notice is slight compared to the important, and sometimes drastic action rising from acceleration.
. Quash is to "overthrow; to abate; to vacate; to annul; to make void; e.g. to quash an indictment." Black's Law Dictionary 1120 (5th ed. 1979). It is as if it never existed. It abrogates ab initio. To thus base a legal notice upon something that does not exist in law is irreconcilable. It is a conceptual anomaly.
. Page eight of Clark Implement’s brief states: "H.C. Clark must provide Mr. Wiedmer notice of its election to accelerate payments by making demand upon Mr. Wiedmer to pay the entire indebtedness. The type of notice is not specified in the contract, but H.C. Clark agrees that some affirmative act must apprise Mr. Wiedmer that the election has taken place. This notice may be in the form of some affirmative act or by the commencement of a lawsuit.” All parties, the trial court, and this Court apparently agree that there was never any notice unless the commencement of the quashed lawsuit suffices as a notice.