Renner Elevator Co. v. Schuer ( 1978 )

ZASTROW, Justice

(dissenting).

I respectfully dissent from the majority decision.

Paragraph (5) of the contract provides: The owner hereby covenants with the Purchaser that he is the lawful owner of said commodities and that the same are free from all liens except none and that he has good right to sell the same as aforesaid, and that he will warrant and defend the same against the lawful claims and demands of all persons.

A fair reading of paragraph (5) would lead one to understand that the contract is for the sale of commodities then in the possession of the seller. Certainly, paragraph (5) qualifies any indication in paragraph (1) that any corn of a similar grade might be delivered to the buyer to satisfy the contract. The contract is just as unclear, indefinite and incomplete as the contracts in McCaull-Webster Elev. Co. v. Steele Bros., 43 S.D. 485, 180 N.W. 782, and Unke v. Thorpe, 75 S.D. 65, 59 N.W.2d 419, where this court considered the “surrounding circumstances” to “interpret its provisions.”

I would allow the pre-contract conversations to be admitted since they would have shown that “said commodities” of which Schuer was the “lawful owner” was intended to refer to the corn in the defendant’s field.