6 S.D. 16 | S.D. | 1894
The plaintiff brought this action to recover $499.99 damages, alleged to be due him for breach of contract entered into by the defendants, under their firm name of McCaull, Webster &Co., as parties of the first part, and one Gotlieb Mix, as a party of the second part, and which claim was assigned by the said Mix to the plaintiff. The complaint set out the contract in substance, and alleged a breach thereof, in that the defendants had failed and refused to turn over to said Mix or the .plaintiff notes for commissions as in said contract provided, and demanded judgment for the amount of such commissions. The defendants, in their answer, after certain qualified denials, alleged an accounting, by which there was found due said Mix, as commissions, $419, and that notes for that amount were selected by defendants, and tendered to said Mix and the plaintiff, and refused by them. They also demanded judgment for the $53.94 pleaded by way of counterclaim. The contract provides for the furnishing to said Mix, by the defendants, Buckeye harvesters, binders, and mowers, at stipulated prices, which said Mix was authorized to sell to farmers upon the following terms and condition's: ‘‘Binders are to be sold on three years’ time, and mowers on two years’ time. All paper taken in payments for machines sold shall be subject to acceptance by the company. It is hereby further agreed that, in case said party of the second part shall take any stock in payment for machines sold, he shall
The ruling of the court in granting the motion only upon the conditions stated, and the refusal to grant such motion unconditionally on the ground of the insufficiency of the evidence to justify the verdict, are assigned as error. No questions as to the correctness of the court’s instructions to the jury, or its rulings on questions of law at the trial, are presented by the assignment of errors. There having been a trial by a jury, the only question for this court to determine is, was there evidence sufficient on the part of the plaintiff to sustain the verdict of the jury? Jeansch v. Lewis, 1 S. D. 609, 48 N. W. 128; Brewing Co. v. Mielenz, 5 Dak. 136, 37 N. W. 728.
The appellants’ contention is that the undisputed evidence shows that the defendants selected notes executed by Imberg and Wolf for the amount due Mix, and that said notes were tenderedjsaid Mix and the plaintiff but refused by them. They further contend that, as the notes were to be passed upon
It is contended by counsel for respondent that there was undue delay on the part of the defendants in making the , selection. We think this contention is not tenable, for the reason that, by the terms of the contract, the notes and securities were to be submitted to the “company” for acceptance. We think, in view of the fact that plaintiff’s assignor knew that the defendants were the agents of Aultman, Miller & Co., and that all notes were taken in the name of the company, the expression “all paper taken in payment for machines sold shall be subject to acceptance by the' company” should be construed as refering to that company, and not to the defendants, who seem to have been only copartners. This being so, the defend • ants were entitled to a reasonable time to submit- the paper to that company. The evidence shows they did so submit the paper, and, on being advised of the acceptance by the company, they immediately selected the notes for plaintiff, and ■notified the plaintiff of the selection. We are of the opinion that the defendants had no right to insist upon the payment of the assignor’s bill before they would deliver the notes or make the payment of his bill a condition precedent to the delivery of the notes; but, as it appears from the evidence that the plaintiff absolutely refused to accept the notes selected