23 S.D. 8 | S.D. | 1909
This action is here upon appeal from the judgment of 'the trial court in favor of the plaintiff, and also from the order of said trial court refusing a new trial.
This cause is brought by the plaintiff corporation to recover as indorsee the amount claimed to be due on one promissory note for $1,005; such note bearing date August 14, 1901, and becoming dire December 14, 1901, and executed by the defendants to the Jan-ney Manufacturing Company, and by such company indorsed to the plaintiff. The complaint is in the ordinary form. The answer after pleading a general denial alleged that the Janney Manufacturing Company was the manufacturer of certain corn huskers; that the defendants were copartners engaged in the business of selling and jobbing farm machinery,- including com huskers; that on July 18, 1901, the defendants entered into a contract with the said Jan-ney Manufacturing Company whereby they agreed to handle corn huskers manufactured by said company, and agreed- to settle for said machines by notes as such machines were received; that at the time of entering into said contract the said company represented that they would furnish, and that they did furnish, the defendant with catalogues and printed matter describing the machines, their capacity for work, etc.; that such catalogues contained the form of warranty which said manufacturing company was to give to the farmers who purchased said machines; that relying upon these representations, or, as they designated them, warranties,' the defendants made this contract, and under the same purchased three corn huskers at the agreed price of $1,005, giving the note in suit for same; that said note was executed and delivered before defendants had any opportunity to examine or inspect or place in use the said machines, and the note was given by the defendants relying upon the warranty and statements of said manufacturing
A careful reading of this answer shows 'that while there was an allegation of breach of warranty, together with what the property would have been worth if as warranted and its actual value as it was, there is no attempt to plead damages from breach of warranty as a counterclaim, and there is no claim upon appeal, nor does it appear anywhere in the record, that the question of counterclaim was considered. Neither is there in said answer any plea of rescission or of an offer to rescind or any allegation that the said corn huskers had ever been returned, or that there had been any offer to return such corn huskers to said manufacturing company. It is also true that the record shows no rescission or offer to rescind by such return or offer to return said machines. It is quite evident that the pleader by said answer and the defense by their proof intended to raise and rely upon the following propositions:
This case has been tried in the circuit court twice. There was an appeal upon the former trial; the original opinion of this court being found in 17 S. D. 396, 97 N. W. 12, and opinion upon rehearing grahted being found in 19 S. D. 238, 103 N. W. 19. The evidence on this trial seems to be practically the same as on the first trial except certain additional evidence upon this trial which is hereinafter mentioned and which relates to the value of the machines, being certain evidence of a proof of loss under an insurance policy and testimony of one of the defendants.
The facts in this case as they now appear, in so far as the same are material to the determination of this appeal, are briefly as follows: The payee of this note, the Janney Manufacturing Company, were engaged in manufacturing corn huskers and other-machinery, and the defendants were retail dealers and jobbers in farm machinery. These parties entered into a written contract under which defendants were to purchase and handle such corn huskers, which contract contained no warranties, but indorsed on the back thereof was a clause by which said manufacturing company agreed to give to each farmer who purchased a machine a printed warranty, which warranty should be a sufficient guaranty that the machine would work as represented. Under this contract,' three machines were received, and the note in question given in settlement therefor. The defendants introduced evidence tending to show that said machines failed to do proper work, and that they failed entirely to meet the representation set forth in certain printed circulars furnished by said company, which circulars the defendants claimed were in their hands and relied upon by them when entering into said contract. Plaintiff’s evidence is to the effect that long prior to the maturity of the note said company in accordance with the custom of said machine company and plaintiff
During the course of the trial the defendants offered, and there was received in evidence, one of the circulars or pamphlets issued by said machine company, and being the pamphlets which defendants claimed led them to enter into said contract with said company and to give the note in question, which circular set forth quite fully the claimed merits of said corn huskers, including the amount of work which they would do per hour, and the necessary power to run the same. This exhibit was afterwards upon motion of the plaintiff withdrawn from the jury and the defendants objected thereto, and alleged error in such withdrawal. The plaintiff offered in evidence a formal sworn proof of loss made on behalf of defendant firm by one member thereof which set forth the loss claimed to have been sutained by the defendant from a fire which destroyed a storage .building and injured property therein. It appears that on December 19, 1904, the three corn huskers involved in this case as the consideration of the note in suit were stored with other machinery in a building, and were damaged somewhat by a fire which destroyed the building. This sworn proof of loss over the admitted signature of one of the defendants purported to give the value of the personal property contained in said building at the time of the fire stating it to be $3,256.25, and giving the total loss on such personal property as $1,883.75, aild claimed under the policy in question a right to recover $1,000 on such personal property; that being the total amount insured by said policy on such personal property. Said sworn statement refers to a schedule annexed in the following . words: “The actual cash value of each
A few well-established principles of law seem to uis material
The above disposes of all four questions attempted to be raised by the pleadings in this case, because, if the defendants under the plea and proof thereunder, would have no defense against a suit by the payee of said note, they cannot have any against the plaintiffs whether considered as bona fide holders of the note or not, and the question of knowledge on the part of the plaintiff, or of whether or not the plaintiffs were holding said notes as agent for the- payee thereof becomes immaterial. It therefore appears that, when this case was rested, the court would have been fully justified in directing a verdict in favor of the plaintiff. This renders unnecessary the consideration of any other questions raised on this appeal and which have not been mentioned herein.
The judgment of the 'trial court and its order denying a new trial are affirmed.