9 S.D. 174 | S.D. | 1896
This was an action in claim and delivery, to recover the possession of an organ claimed by the plaintiffs under a chattel mortgage. Judgment for the defendant, and the plaintiffs appeal.
The defendant, in her answer, pleaded payment - in full of the chattel mortgage debt. The organ in controversy was sold-to the defendant by one Deutsch, who was the agent of the plaintiffs for the sale of their organs at Rapid City. The price agreed to be paid was $125, of which $35 was paid at the time of the sale and a chattel mortgage was executed to secure the balance, evidenced by 18 promissory notes for $5 each, payable monthly. Three of these notes were paid. Deutsch guarantied the payment of the notes, and forwarded them, with the chattel mortgage, to the plaintiffs, at Chicago, 111. The 15 notes not being paid, the plaintiffs forwarded them to a bank at Rapid City for collection, and they were subsequently delivered by the bank to Deutsch, upon an order of the plaintiff, who instructed Deutsch to collect the same, and in case they could not be collected, to recover possession of the organ under the chattel mortgage. Some months prior to this order for the notes, and direction to collect same or take the property, Deutsch undertook to collect the notes; but whether as agent of the plaintiffs, or to protect himself as guarantor, does not very clearly appear. The defendant being unable to pay, her father, a Mr. Carroll, gave to Deutsch what appears to be a certified or O. K’d bill or order on Fitzgerald Bros,, under whom he was employed as a sub-contractor in the construction of a railroad. Defendant contends that this bill or order ¡was expressly accepted by Deutsch in full payment, but none of the notes were surrendered up. Deutsch testifies, in rebuttal, that he took the bill or order under the agreement that, if it was paid by Fitz
It will be necessary, therefore, to examine the evidence for the purpose of ascertaining if there was any competent evidence to submit to a jury upon this question. The only evidence upon this subject was that of the defendant, who testified under objection and exception, that Deutsch, on a former trial, testified that he did accept the bill or order in full payment of the balance due on the organ. Was this evidence admissible or competent, as tending to prove that the bill or order was in fact accepted by Deutsch under an express agreement that it should be 1’eceived in payment of the balance due? Such evidence would undoubtedly have been admissible under certain circumstances, not now necessary to discuss, for the purpose of contradicting the evidence given by Deutsch on the stand. But the question now being considered is, did it constitute competent, affirmative evidence that Deutsch accepted the order in full payment of the balance due? We are of-the opinion that it did not. The question calling for this evidence was objected to on the ground that the statement made by Deutsch on the former trial could not bind the plaintiffs. The objection was overruled, and in this ruling, we think, the'court committed reversible error. The evident object and purpose of the testimony, at the time it was offered, was to show that Deutsch had admitted that he accepted the order upon the express agree
The defendant, having failed to give any competent evidence that the order was either, in fact, paid, or that there was •an express agreement that the order should be accepted in full payment, the plaintiffs were entitled to the possession of the organ under the terms of the. chattel mortgage. The court in its charge to the jury, assumed that there was evidence sufficient to authorize a verdict for the defendant. In this the court was clearly in error. In this assumption ' the court must have treated the evidence as to Deutscb’s admission as a witness on the former trial as projoerly before the jury, as there was no other evidence upon which such an assumption could have been based. It clearly appears, therefore, that the admission of that evidence was controlling in the case, and constituted the evidence upon which the charge of the court was based, and upon which the jury found a verdict in favor of the defendant.
The learned counsel for the respondent contend that the defendant denied that she executed the chattel mortgage, and therefore the jury may have found a verdict in her favor upon that issue, and hence that the admission of the evidence of the statements of Deutsch, if erroneous, would not entitle the plaintiffs to a reversal of the judgment. We think this position is not tenable, for the reason that that point was not raised in the court below, and the case was tried upon the theory that the defendant duly executed the chattel mortgage. But, if this