American Property Services, Inc. v. Barringer

In view of the rather casual manner in which this case was prepared and submitted by both parties, I would hold that defendant’s adverse examination of plaintiff’s witnesses, together with defendant’s trial brief, sufficiently raised the issue of failure of consideration so that that issue can be said to have been tried by implied consent of the parties. SDCL 15-6-15(b).

The question, then, is whether plaintiff is entitled to recover under the terms of the listing agreement in the absence of proof that it had performed some substantial services under the terms of the agreement. I would hold…