168 N.W. 737 | S.D. | 1918
This action was brought for the recovery of the purchase price of a milking machine, a cream separator, and a gasoline engine alleged to have been sold to defendant by plaintiff. As a defense defendant pleaded the statute of frauds, and also alleged tlrat the machinery was 'delivered to defendant on 30 days’ trial, at the end of which time defendant was to purchase said machinery if it proved satisfactory in ever)'- way, but that, if it
At the close of plaintiff’s testimony defendant moved for a directed verdict, up in the grounds; “first, that it appears from the evidence that, if any contract for the sale was ever made, the machinery involved was to be installed -ready for use; and that it appears from the evidence .that the cream separator had riot been installed; and- that there w-as no evidence to show that plaintiff had been- excused ¡o-r prevented >by defendant from installing the same; and, second; that the contract between- plaintiff and ¡defendant was a mere oral contract for the,.-s'ale of persion-al property of the v-al-ue of mo-re than: $50, and that no part of the property sold -had ever been accepted! by -defendant, and ¡that no part of the purchase price had ever been paid. .This motion was granted, and judgment dismissing plaintiff’s .complaint on. the merits was entered. From this judgment and -an order denying a miction for a new trial, plaintiff appeals.
The contract, as stated by defendants in his brief, was as follows r • •
“T-he defendant, -in, person, -called at plaintiff’s1 place of business and orally requested plaintiff to install upon ¡his farm a gasoline engine, milking machine, and cream separator, ¡which plaintiff orally promised to do, the talk being that, when the machinery was installed, defendant would pay therefor the sum- of $335. The conver-satiioin between the parties ¡contemplated! the ¡installation and subsequent purchase of three machines as one transaction -and for one price.” '
The evidence shows that defendant went to plaintiff’s- place -of business; and, after looking -over various machines, made a selection, and told -a member of plaintiff’s firm- to “put it in.” By (this he meant that plaintiff was to set up and -install, the said machinery where it was to be used on .defendant’s farm. On the following day -defendant sent -one Hanson, (who was employed by defendant as foreman and general- manager of defendant’s farm') -with a team and wagon to haul said -machinery out to defendant's! farm, and a member of plaintiff’s company went out to said farm-, and, under the directions of said Hanson, -installed the gasoline engine and milking machine, -but nía place had been prepared for the cream
“We will just set the separator off 'here. We are selling the milk ini town, and we won’t have any use for it until after the expiration' of our contract with the creamery, and we will set it off here, and I will ¡take care of it.”
The judgment and order appealed from are reversed.