Watters v. Ryan ( 1918 )

McOOY, J.

This action was instituted' for the specific performance of a 'contract for the purchase and sale of certain real estate. Findings and judgment were in favor of defendant, and' the plaintiff appeals. The appeal in this- case is from the portion of the judgment 'denying specific- performance. This same cause based upon the same contract, was before this court on a former occasion; the decision being reported in 31 S. D. 536, 141 N. W. 359. The contract will be found in the former decision.

It is now contended by appellant that, by reason- of additional evidence offered' on the last -trial!, t'h-e -decision on the former appeal has no Ibindin-g effect as the lawi of the case as it now appears from the record -before us on this appeal. We are unable to concur in this -contention. Of- course, there may ¡be a great many causes presented to the appellate -court a second time, wherein there has been submitted su-ch a changed showing -as -to w'h-at t-h-e facts surrounding the -case were, as to warrant a -different -decision 011 the second appeal; but we are of the opinion that no such state -of -different facts- is or could be shown to exist in this case. This cdurt held ibry the former opinion t'h-ait the contract, on which the plaintiff, who is appellant in -this case, based bis- cause -o-f action and right to specific performance, contained -certain provisions and 'condition's which inherently rendered the sai-d -contract unconscionable, and -one which a -court of equity would- not specifically enforce. These provisions' -of this- contract are- unchangeable, and stand with the same force and effect on this as on the 'former appeal, and, 'while there may be much additional evidence as to- surrounding circumstance® in relation to the transaction of the sale of the said lands, the vital 'point, the- -provisions of the contract, is uneh-an-ge-d; and the -decision on this muis-t of necessity be th-e same as on the former appeal. The -decision- ion the former appeal was- and is the law of' this case as to the force and effect of the -contract for the purposes of specific performance. Other assignments o-f error have been made on -other propositions involved, all of which ih-ave been carefully considered, and we are of the view that no prejudicial error appears therein.

Finding no .prejudicial error in the record, the judgment and order appealed from -are affirmed.