15 S.D. 476 | S.D. | 1902
This is an action by the plaintiff, as assignee, to recover of the defendant the value of certain goods, wares, and merchandise sold to the defendant by the plaintiff’s assignors. The case was tried by a jury which rendered a verdict in favor of the plaintiff for the sum of $522, and from- the judgment entered thereon defendant has appealed.
It is contended on the part of the respondent that there is nothing before the court for review except the judgment roll, as there is no specification of the particular errors relied on,, annexed to or made a part of the bill of exceptions. The record discloses that on the 28th day of July, 1900, the defendant served a notice of intention to move for a new trial, and that said motion would be based on the minutes of the court, and upon a bill of exceptions on the following grounds : “ (1) Errors of law occurring at the trial;
The notice of intention annexed to and made a part of the bill of exceptions does particularly specify the court’s alleged error in refusing the instruction requested on the part of the defendant marked “Refused.” The alleged error was properly before the trial court, and will be reviewed by this court. That instruction reads as follows: “That the court instruct the jury that in arriving at a verdict in this case, that the measure of damages in this case is the actual value of the goods if they had been as warranted, and what they were when delivered, to a person in the line of a retail dealer, and making it a business to sell shoes to the general public for a business.” This instruction does not state the rule of damages in such a case correctly. Section 4593, Comp. Laws, lays down the rule of damages in such an action as follows: “The det
No error appearing in the judgment roll, the judgment of the court below and order denying a new trial are affirmed.