Bruse v. Ertmoed

222 N.W. 689, 54 S.D. 243, 1929 S.D. LEXIS 310

• Court: South Dakota Supreme Court
• Decided: January 5, 1929
• Docket: File No. 5929
• Status: Published

Opinions

POLLEY, J.

This case is before the court upon a rehearing heretofore granted. The opinion of the court will be found reported in 221 N. W. at page 47. A rehearing was asked and granted upon the sole ground of the insufficiency of the evidence to support the verdict.

The right of recovery is based upon the following clause in the settlement contract between plaintiff and defendant: “It is agreed that in case Allie shall become unable to support himself that the support of him shall fall equally upon these parties.” The fair inference to- be drawn from this clause is that at the time the contract was entered into that Allie was able to support himself. The evidence does not show when, if ever, Allie became unable to support himself. Since defendant was not required, under the terms of the contract, to contribute to the support of Allie until he became unable to support himself, it was incumbent upon plaintiff to show, approximately, at least when it was that Allie became unable to support himself. Because of the insufficiency of the evidence to show this fact a new. trial will be awarded.

The judgment and order appealed from are reversed.

BURCH, P. J., and CAMPBELL, J., concur.