16 S.D. 92 | S.D. | 1902
This is an action to recover the purchase price of 4,000 Bigelow cigars and 10 dining chairs alleged to have been sold by the plaintiffs to the defendants at the agreed price of $140. The defendants delivered to the agent of the plaintiffs a written order, bearing date of October 17, 1899, for said cigars and chairs, at the price named, for December shipment. Said order was received by the plaintiffs, and they shipped the cigars and chairs to the defendants f.' o. b. at Medina, N. Y., December 11, 1899. On the same day that order was given, the defendants gave the same agent a similar, order for 1,000 of the same brand for immediate shipment. Said 1,000 were shipped and received by defendants some time
It is contended on the part of the plaintiffs and appellants that the evidence was inadmissiblé; that the issue raised by the pleadings was as to whether or not the cigars shipped in December corresponded with the sample, and that issue could only be determined by proof of the quality and condition of the cigars so shipped. It is insisted by the respondents that the 1,000 ordered as before stated were of the same brand, sold by the same sample, and under the same representations as the 4,000 in controversy in this action, and the evidence was therefore properly admitted. We are of the opinion that the contention of the appellants should have been sustained, and that the evidence as to the quality of the 1,000 was improperly admitted. The 1,000 order so received must be regarded as a separate order, which was shipped at an earlier date. - The fact, therefore, that the 1,000 ordered did not correspond with the sam
As the questions involved in the other assignments of error will not necessarily arise on another trial, we do not deem it necessary to consider them on this appeal.
The judgment of the circuit court and order denying a newT trial are reversed, and a new trial granted.