#### WATTERS, Appellant, v. RYAN, Respondent.

. (168 N. W. 719).

(File No. 4303.

Opinion filed Sept. 3, 1918).

(On Rehearing, Case Stricken from calendar Nov. 4, 1918).

Specific Performance — Land Sale Pending Litigation — Vendee in Possession and Use Covering Taxes and Mortgage Interest— New Evidence on Re-trial — Former Decision, Whether Law of Case?

Where Supreme Court upon former appeal (31 S. D. 536) construed a contract of sale of realty, containing .certain provisions and conditons which inherently rendered it unconsciouncable, and unenforcible in equity; certain additional evidence having been introduced upon re-trial; held, that the contract as so formerly construed controls upon present appeal; the provisions of the contract being unchangable; and stands with same force and effect as on former appeal; and while there may ibe additonal evidence as to surrounding circumstances concerning the transaction of sale, the vital point, the contract, being unchanged, the decision must follow former appeal, it being the law of the case for purposes of specific performance.

Whiting, P. J., concurring specially.

Appeal from Circuit Court, Spink County. Hon. Joseph H. Bottom, Judge.

Action 'by G. M. Watters, against J. W. Ryan, to enforce specific .performance of a contract of sale of realty. From, a judgment for defendant, and from, an order denying a new trial, plaintiff appeals.

Affirmed.

*John B. Hanten•,*an'di *W. P. Bruell,*for Appellant.

*M. M-ariarty,*and *Sterling & Clark,*for Respondent.

Appellant cited:

Waller vs. G. N. Ry. 1Q0., 22 S. D. 256, 18 L. R. A. NS. 297; Dolvin vs. Am. Harrow Co.,’28 L. R. A. NS. 787; Meeks v. SP. 56 Cal. 513.

Respondent cited:

23 Cyc. 1306.

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 *14occasion; 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.

WHITING, P. J.

(concurring specially). My -colleagues hold that the contract between these parties was -su-ch that no such state -of facts different (from those shown: upon- the former trial) is or could be shown to exist as would warrant “a -different decision on (this) the second appeal.” If they were -of such- op-inion, they should not have concurred in the opinion handed dWwn upon the former a-p-pea-l, but should have directed the lower -court to *15enter judgment in favor of ■defendant. 'Upon the forrper appeal we remitted the case for a new trial, saying:

“This cause should fee remanded to the trial court for further trial, and unless such court shall 'be able, under such further light as it may receive upon another trial, to construe the contract so that, even after the lapse of 'the long period that has run since' it was entered into, equity may be done between the parties hereto, or unless respondent shall come into court anid ‘consent to a conscientious' modification of the contract’ (Willard v. Taylor [8 Wall, 557, 19 L Ed. 501] supra), it should remand the respondent to his rights at law and1 refuse specific performance of ¡the contract.”

I ¡believe this court did not err in its former opinion, and therefore cannot concur in the reasons announced by any colleagues for affirming the lower court. But, being of the opinion that upon the new trial no facts were shown warranting a different construction' of the contract from that given upon the former appeal, and that plaintiff did not upon the new ¡trial ‘‘consent to a conscientious modification of the contract,” I 'am of the opinion that the trial court did not err in refusing specific performance of the contract.