*1 Fay Ted C. FREDRICK and Wanda Fred
rick, Respondents, Plaintiffs and DREYER,
Cecil Trailer d/b/a Defendant, Third-party
Sales, Appellant,
Plaintiff and COMPANY, INC.,
FALCON COACH
Third-party Defendant. 11895.
No. Court of
Supreme South Dakota.
Argued 25, 1977. March Sept, 23,
Decided
Wally Johnson, Eklund of Johnson & Ek- lund, Gregory, plaintiffs for respon- dents. Simpson, Winner,
John J. for third-party appellant. DUNN, Chief Justice.
This is an action for breach of warranty purchase in the of a 1972 Falcon Motor Home. In answer, addition to his defend- ant third-party complaint filed a against Falcon Coach Company which al- leged that any warranty on the trailer was the sole responsibility of Falcon. Falcon attempted quash juris- service for lack of diction and later instituted bankruptcy pro- ceedings. The judge found Falcon default and removed it from trial of the issues before the juryA trial of the matter was held Court, Sixth Judicial and the jury Circuit awarded the in damages. March Judgment was entered on for a new defendant’s motions trial and judgment n. o. v. were denied court’s order of March 1976. The de- fendant appeals judgment and order. 57-4-30 liability, breached. SDCL states verdict We affirm * * * modified, “[ujnless for a new trial on excluded or and remand but reverse issue of shall be merchant- implied able is in a contract for their sale if Mr. and plaintiffs, In October respect, the seller is a merchant with Fredrick, hire the defendant sought to Mrs. *3 of that It is goods undisputed kind.” that dealer, their to move a mobile home Dreyer, homes. Dreyer was a “merchant" of mobile from Dako- home to South mobile Nebraska merchantable, goods 57-2-7. To be SDCL them that After defendant advised ta. must at least such as are “fit for ordi- other than his any could not tow trailers goods are nary for which such purposes own, possible a sale. the discussed parties * * 57-4-81(8). used *.” SDCL October, agreed possible to a Later in the to Dreyer sale. was to deliver problems, In addition to various other The O’Neill, Nebraska, up.” “set it and that none of plaintiffs introduced evidence trailer, which their old Fredricks traded latch, the that the frame was doors would $8,400, financed the bal- valued at and was crooked, hooked wiring that the was the Ranchers Na- through ance of plumbing the did not incorrectly, and that tional Bank Winner. this work We hold that evidence properly. early Decem- The trailer was delivered jury’s the decision justify was sufficient to 1972, up. Prob- service was hooked ber and warranty had been breach- implied that an arose, being the chief one immediately lems ed. leaks, witnesses plaintiffs’
water
which
a seller
Defendant contends that
flooring rot and
carpet
stated caused
and
against
not
warrant
latent
impliedly
does
deterioration,
mildew,
sag
insulation
nothing in the Uniform
There is
defects.
odor, underbelly sag, and rust of
unpleasant
proposi
support
Commercial
Code
was also
the heat duets. There
Ap
As the
Court of
tion.
United States
bent, resulting in the
being
as to the frame
stated:
for the Third Circuit
peals
wir-
latching,
improper
doors not
and as to
implied
“The entire
behind the
purpose
burning of
necessitating the constant
ing,
is to hold
sections of the Code
warranty
refrigerator oper-
the
lights
keep
kitchen
goods
inferior
responsible
officer
the seller
when
ating.
and the bank loan
damage
passed along
unsuspecting buy-
less
are
testified that
there was much
requires
admit-
the
is not evi-
claimed. Defendant
er. What
Code
plaintiffs
than
or
nothing
repair
ted that he had done
dence that
the defects should
could
state that he told
seller but
problems,
by
but he did
have been uncovered
send him
to call a
were
plumber
only
delivery
by plain-
contradicted
quality
the bill. This was
of a
or fit
merchantable
payments
Fredricks made two
requi-
tiffs. The
If those
particular purpose.
their
making
stopped
only
on the trailer and then
excul-
proofs
site
are established
they had
problems
them because of the
the Code is a
by
relief afforded
patory
encountered.
were
showing
implied
warranties
language
by specific
modified or excluded
trial,
Before
the court found Falcon in
**
*
gra-
under
2-316.
Section
default and excluded it from the trial be-
what
much with
vamen here is not so
It
denied the defend-
jury.
fore
also
seller but
were taken
precautions
answer on the
ant’s motion to amend his
goods con-
quality
rather with the
a
of contribu-
day
trial
include defense
Vlases
buyer.”
tracted for
along
tory
rulings,
These
with
negligence.
1967,
Company,
&
Montgomery Ward
others,
by the defend-
are claimed as error
846,
F.2d
ant.
point
raises as a
The defendant next
first decide whether there
will
We
the trial- court
ruling
of error the
support
was sufficient evidence to
defendant, be re-
Falcon,
third-party
a
jury’s conclusion that
moved from the trial
the issues before
rests in
sound
discretion of the
15-6-20(b)
Co.,
allows a court
SDCL
R.
Chicago
court.
Johnson v.
& N. W.
“order
make other or-
separate
trials or
580,
72 S.D.
N.W.2d
State
discussing Federal Rule
Miller, Federal Practice and Procedure:
Civil 1660 states in
ders to
the court
*4
he asserts no claim and who asserts no
als make
“Rule 20(b)
claim against him.”
party from being
**
or
prevent
joinder
authority
furthers this
put
delay or
other
to unnecessary expense
part:
to order
party
order
*
20(b), Wright
policy
prejudice.”
* *
against
separate
prevent
by giving
delayed
whom
tri-
In
& also 98
a
for the
much latitude
within
to show bias and
stated in
Ness,
[*]
facts
[*]
the discretion of the trial court and
purpose
C.J.S.
)t
N.W.2d
Plank v. Heirigs,
a witness
75 S.D.
which are otherwise immaterial
Witnesses
is to
193, 197,
testing
may
prejudice
be allowed
839 points de- whose and that of error raised general party rule that a It is the argument in are not such as would merit improper fendant pursues counsel of granting of of a new trial on the issue complain reply estopped a is vites finding of liability. We affirm as a cit Trial reply argument. C.J.S. warranty. of ing Binegar Day, correct 621. Even if the defendant N.W .2d Finally, to rule we are asked attorney ly plaintiffs' contends damages the award of should be re argument, which we engaged improper inadequate of an basis versed because decide, attorney not the defendant’s need be This court could determined. and defendant is arguments, made similar as to dam following rule has set out the raising error as to issues estopped from ages: provoked by which were his own counsel’s may not “While the nature case Gould, 1939, 206 statements. Hinman v. permit estimating damages with certain As court Minn. N.W. ty, it is the rule in this state supra, granting Binegar, out in pointed may damages not be measuring matter of disci a new trial should not used to speculation part left to mere on the appellate pline counsel, court should be shown Facts roust exist and a reg interfere with court’s efforts at a by the evidence which afford basis only conduct counsel when ulation measuring the with loss been it is convinced that there has miscar v, Kreasly The certainty,” reasonable riage justice. are so We convinced berge, 1961, 386, 389, 112 N.W.2d *5 this case. 232, 233. points to the trial Defendant next gee also, Peter Co. v. Kiewit Summit Sons’ court’s denial of his motion amend his 242; 8 Co,, 1969, Cir,, 422 F.2d Construction as The error. made the answer motion was v, Company, Chemical Swenson Chevron to add a of of defense morning the trial 1975, S.D., 38. N.W.2d 234 negligence. It was denied contributory 2-714(2)) states that (UCC SDCL 57-8-37 felt lack of timeliness and because court .damages for breach of the “measure of negligence was not a de contributory * * be warranty is the difference action, warranty fense to a of and accepted tween the value of The of whether to allow amend question they if had the value have had would * * years two ment at such a late date —almost Fair market been as warranted denial of was general after upon is the which tes value usual standard served —is in the discretion such cases is damages in based. timony as to Jones, 1909, 79, O’Neill 24 court. S.D. Cummins, 1974, 41 Ohio App.2d Eckstein v. 496; Leighton, 123 Simmons v. N.W. 897; Housing, Mobile Inc. v. 321 N.E.2d 524, 244 find no 60 N.W. 883. We 56; Moss, 1972, 483 Tex.Civ.App., S.W.2d courts have many abuse here. ruled Since Machinery Com Processteel, Mosely Inc. v. is not a de contributory negligence 1970, Cir., 6 421 F.2d pany, warranty (Young actions fense to breach of witnesses plaintiffs put The on two 1957, Cir., 9 Company, v. Aeroil Products home as ac- the value of the mobile show 185; 248 F.2d Hansen v. Firestone Tire and a Nebraska cepted. The first witness was Dag Company, 276 F.2d Rubber an estimate gave who mobile home dealer ley Armstrong Company, Rubber he stated that and then repair, as to cost of Cir., 245), an instruction 344 F.2d and since wholesale; however, $6,000 pay would for it damages minimize buyers’ duty as to the that he had cross-examination replied he on how the given, it is difficult to see was the fair market given opinion no as to what prejudiced. defendant was were offered value would if the home he therefore, jury public. He stated opinion, general It is our for sale if he on it profit of expect verdict as to the existence of a breach would to make a $6,000 resold it bought evidence it for and supported general but no public, gave testimony give opinion as and he refused to as to fair expected profit to his retail sale price market value.
he would on it. put accepted Fredrick's apparently
The only other witness value giving testi- $3,500 of the higher valuation of instead mony Fredrick, was Ted plain- one do figure of wholesale. While we tiffs, who first said the mobile home was not hold that were bound anything worth in its present him higher given figure experts one their condition, but who then as testified follows: & (City Cedarburg Light Water v. Allis-
“Q your you Is it value the Chalmers, Wis.2d N.W.2d
one you bought, knowing the condi- 13), figures given by we hold that do in, tion it was at somewhat the speculative same both witnesses were too to form your value as trailer other home? to base foundation an award “A damages. I wouldn’t trade even for it.
“Q you Do I understand that value the Thus, liability, we affirm as re- talking we’re about here verse and remand for trial on the issue of neighborhood somewhere in the $3500? “A Probably in there.” somewhere PORTER, JJ., ZASTROW concur. cross-examination, On Fredrick testified as WOLLMAN, J., concurs specially. follows: “Q You don’t know market value? MORGAN, J., in the concurs affirmance “A I’m not in the part business. the result reversal part. “Q You don’t have idea what market value is? WOLLMAN, Justice (concurring special- “A I I testified to that. don’t know. ty)- Earlier, “Q you when I ques- asked permitted Because Instructions 10 and 14 tion a deposition, you you on said argue the substance of his *6 didn’t have idea? contributory defense I negligence theory, “A say. That’s what I still agree prejudiced that defendant was not
“Q value, As to market still don’t have permit trial court’s refusal to any idea? to amend his answer. I would not want to No, agree “A I I don’t that! know.” contributory negligence may intimate that Ordinarily, permitted owner is be a defense in state the fair market of his property value actions, however, contributory since the and this evidence can considered misconduct of a plaintiff apparently is a arriving at its verdict. Hannahs v. actions, defense such whether expressly Noah, 1968, 83 158 N.W.2d as recognized such or not. See White & Chevrolet, S.D., Burke v. Thomas 227 Summers, of the Law Handbook Under However, N.W.2d 31. 11-7, Uniform pp. Commercial Code 335- case stated unequivocally that did not know the fair market His value. backhand- value,
ed estimate on quoted above, was at
best a statement of what the trailer was
worth to him. price The wholesale
$6,000 testified to by the Nebraska trailer
dealer supplemented by any was not evi- sale,
dence of expected profits on retail