16 S.D. 252 | S.D. | 1902
In this action the plaintiffs seek to recover damages for the alleged breach of a contract to sell certain threshing machinery. They reside at or near Watertown, in this state. The defendant is a corporation doing business at Auburn, in the state of New York. On July 27, 1898,- an order signed by the plaintiffs, addressed to the defendant,- at Auburn, was mailed at Watertown. It was written on a blank furnished by the defendant, and contained, inter alia, the following pro
The jury found the value of the secondhand machinery to . be $500, and the plaintiffs’ damages by reason of defendant’s failure to promptly ship the new machinery to be $450 It ap
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In respect to the damages awarded on account of defendant’s failure to promptly ship the new machinery, the important inquiry is whether the evidence was sufficient to sustain the finding of the jury that the order was approved by the company. Before considering this feature of the case, it will be necessary to review certain rulings on the introduction of evidence. Hess, one of defendant’s local agents, called as a witness on behalf of the plaintiffs, testified: ‘ T have seen Exhibit 8 before, in our office. It was delivered here by the telegraph company. We sent a telegram to the company before we received it, or a letter. This telegram is in reply to it, We have no copy of the telegram we sent to which this was the reply. I have not got it in my possession. I think it is in
Finding no reversible errors relating to the introduction of evidence affecting the branch of the case now under consideration, we proceed to consider whether it was sufficient to sustain the finding that the order signed by the plaintiffs was approved by the defendant. The instrument itself, when introduced in evidence by the plaintiffs, contained this indorsement: “Declined August 1, ’98.” The secretary and manager of the defendant corporation testified: “The order was declined the same day it was received. Defendant declined to approve the order or to accept it. ' I represented the company in declining to accept the order. I wrote a letter declining the order io Mr. A. C. Dallman, at Fon du Lac, Wisconsin — the agent of that territory from whom we received it. The order came from him to us. It did not come directly from Hess & Rau to us. There has never been anything done towards carrying out this order.” Opposed to this were the inferences arising from the telegram heretofore mentioned, and the following testimony of one of the'plaintiffs, which was received without objection: “I
There being no reversible error affecting the amount of the plaintiffs’ recovery on account of defendant’s failure to promptly ship the new machinery, and as such recovery is independent of, and not affected by, any errors relating to the value of the secondhand machinery, we think the judgment below should be modified by reducing its amount from $950 to $450, with interest, costs, and disbursements. Because of the substantial character of this modification, appellant will be allowed the same costs and disbursements as if the judgment were reversed. The action is remanded, with directions to the circuit court to modify its judgment in accordance with this decision.