5 S.D. 352 | S.D. | 1894
This action was founded upon a contract entered into by the plaintiffs with thirteen subscribers, of which the defendant was one, to erect a creamery and cold-storage building at the city of Huron, and furnish all the materia] and labor, for the sum of -$6,500, to be paid for on completion of the building. The cold-storage department was to be constructed under the McCray cold-storage and refrigerator patents. Each of the thirteen subscribers to the contract agreed to pay $500. There are a number of stipulations in the contract not necessary to be given, and we select such, only, as we deem material to a determination of the controversy, which are as follows: “The cold-storage department is 30x40 feet, and built and fitted up according to, and under, the McCray cold storage and refrigerator patents, the general plan of which is shown on plans. * * * And the ice department
The defendant, at the close of the plaintiffs’ evidence, and again at the close of the whole evidence, moved the court to direct a verdict for the deft ndant upon the ground that plaintiffs had failed to make this proof. A decision on this question was reserved by the court. The verdict being for the defendant, no decision was directly made upon the motion. The counsel for the respondent, however, insists that the failure to make such proof was fatal to plaintiffs’ right to recover, and hence it does .not become necessary to consider appellants’ assignment of error. We are of the opinion that counsel is correct. If plaintiffs, und< r the evidence, could not have recovered in the action, this court is not called upon to discuss or consider the errors assigned, as the judgment must necessarily be affirmed. We shall therefore proceed to consider this question.
The counsel for respondent so fuliy and clearly states the theory of respondent that we insert, substantially, a portion of
The other questions presented and discussed, we do not deem it necessary to consider or decide at this time. The judgment of the court below is affirmed.