DocketNumber： None
Citation Numbers： 2003 SD 25, 658 N.W.2d 783, 2003 S.D. LEXIS 27
Judges： Konenkamp, Gilbertson, Zinter, Meierhenry, Sabers
Filed Date： 3/5/2003
Status： Precedential
Modified Date： 10/19/2024
(dissenting).
[¶ 24.] I would affirm this case but modify it to the extent of the unjust enrichment. Mehling got the rents, profits and ASC payments without paying anything except the real estate taxes. Throughout all five years, Mehling had all the benefits from the land, but never parted with the purchase price for the land.
In other words, he had the use of his purchase money all five years and was unjustly enriched to that extent at the expense of the seller Hofeldt.
[¶ 25.] Having the use of the purchase price should be treated in the same manner as the real estate taxes, which Mehling eventually tendered. The trial court was wrong to say Mehling did not profit from the delay. He did, it is called unjust enrichment.
[¶ 26.] The majority opinion sets forth the correct law in ¶ 15, but fails to follow it:
The Restatement of Restitution declares that “[a] person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Restatement of Restitution § 1 (1937). The comment to this section explains that “[a] person is enriched if he has received a benefit. A person is unjustly enriched if the retention of the benefit would be unjust.” Restatement of Restitution § 1 cmt. a (1937) (emphasis added). Unjust enrichment occurs “when one confers a benefit upon another who accepts or acquiesces in that benefit, making it inequitable to retain that benefit without paying.”
(citations omitted).
[¶27.] Therefore, all three prongs of unjust enrichment as set forth in ¶ 16 are present:
1. Mehling received a benefit;
2. Mehling was aware he was receiving a benefit;
3. It is inequitable to allow Mehling to retain this benefit without fully paying for it.
[¶ 28.] Here, Mehling (1) received a benefit; (2) Mehling was aware he was receiv