Fullerton Lumber Co. v. Hosford

184 N.W. 975

| S.D. | 1921

WHITING, J.

Suit to recover the selling price of several loads of coal.. Judgment for plaintiff. Appeal from the judgment and from an order denying a new trial.

[1] Appellant assigns as error the admission of certain exhibits, the weight slips for the several loads of coal. These weight slips purport to show on their face, that the coal therein referred to was sold to the defendant and hauled by a third party. The weight slips were admissible in evidence. If other evidence was not introduced showing that this coal was received -by appellant, he should have moved to have such exhibits stricken from the record and their consideration taken from the jury.

[2] Appellant asigns as error the giving of certain instructions and the refusal to give an instruction sought by him. With the exhibits in evidence, the instructions given were proper, and the one refused would have been erroneous, unless there was no evidence from which the jury could properly find that this coal was received by defendant. It clearly appears that the attention of the trial court was not called to the fact, if in truth it was a fact, that these exhibits had not been properly connected up with the defendant.

[3] There was evidence to the effect that appellant, after the delivery of this coal, which concededly went to appellant’s farm, but which appellant claims was furnished to, and should have been paid for by, parties doing breaking for him, received from, respondent an itemized statement of respondent’s account and promised to pay for same. N'o suggestion is made that the evidence failed to show the amount of such statement and that such amount agreed with the amount sued for, -or that such statement failed to agree with the weight slips, thus connecting appellant with such slips.

*3The judgment and order appealed from are affirmed.

McOO'Y, J., not sitting.