15 S.D. 530 | S.D. | 1902
This is an action in claim and delivery to- recover possession of certain threshing machinery. The plaintiff is engaged in the manufacture of threshing machines at Racine, Wis., and the defendants are residents of Clear Lake, Deuel county, in this state. On July 29, 1898, the defendants gave a written order to the plaintiff, through its local agent, for the threshing machinery, agreeing to receive the same on arrival, subject to warranty therein, and to pay freight charges thereon, and to pay for the same by turning over to the plaintiff a second hand threshing outfit, and executing and delivering certain notes, secured by chattel mortgage, for the unpaid balance. On August 18th the defendants delivered the second hand
It is contended on the part of the appellants that the amended complaint served contained a new cause of action, and the court was not, therefore, authorized to permit such an amendment at the beginning of the term of. court, and its allowance at that time was an abuse of its discretion. Under the system of pleading in force in this state it is the duty of the courts in furtherance of justice to exercise their powers liberally in permitting amendments to pleadings, in order that the real issues between the parties may be fairly tried. In the case' at bar, while the amended complaint sets out the facts on which the plaintiff relies more fully and in detail, the facts constituting the cause of action do not, in our view of the case, change the nature
It is further contended by the appellants that the court erred in denying defendants’ application for a continuance, and ordering that the case stand for trial for the March term, and that the defendants should answer the amended complaint when the case should be called for trial. The notice of motion for leave to’ amend was served some ten days before the commencement of the term, and about eight days intervened between the commencement of the term and the time of the trial. This contention of the appellants is .based upon three propositions: (1) That under Section 4911 the defendants had 30 days in which to answer the amended complaint; (2) that two short a time intervened between the time of filing the amended complaint and the trial to enable the defendants to properly prepare an answer and to prepare for trial; and (3) no new notice
To. the amended complaint of the respondent the defendant pleaded three defenses, the first of which was in substance, that the plaintiff, through its agent at Clear Take, induced the defendants to deliver the second hand threshing rig as part payment for the new machinery some 15 days before the arrival of the same by falsely representing to them that the new rig had been shippedand that lhe\- were thereby deprived of the use of their second hand rig from the T<Sth day of August until the arrival of the new machinery on September 5th. and sustained damage of $30 per day. In the second defense (hey sought to plead an estoppel by alleging that defendants paid freight on the said new machinery with full knowledge and consent of the said agent, and with the full knowledge and consent of the said agent and of plaintiff they took actual possession of the property described in the complaint: that with the full knowledge of said agent the defendants, at their own cost and expense, unloaded said machinery from the car, and necessarily expended in so doing the sum of $io; that with the knowledge and consent of said agent appellants made improvements on said threshing machinery of the value of $ii, and that by reason thereof the plaintiff is estopped from.recovering the said property. Defendants also set up the loss of the use of the new machinery for three days while held by the sheriff in the claim and delivery proceedings, and demand $150
The first question presented by these motions and the cofirt’s ruling is, was there any issue to be submitted to the jury? In other words, was the court right in holding that there was no delivery of the machinery upon the undisputed facts? Second. Was the ruling of the court that there were no issues to be passed upon by the jury correct? It was undisputed that on the arrival of the machinery at Clear Lake the defendants paid the freight, unloaded it from the
This brings us to the last question presented, viz., did the court err in holding that the defendants were not entitled to counterclaim the damages sustained by them by reason of their delivering the old rig 1.4 days before the new machinery arrived? We shall assume for the purpose of this decision that the agent induced the defendants to deliver to him the old rig by falsely representing to them that the new machinery was shipped and on the road, and would arrive within a day or two, as testified by the defendants. It was not shown that the agent had the authority to make such a representation, either actually or ostensibly, or that the plaintiff, with knowledge that said old rig had been delivered, ratified the action of the agent. Without such evidence the defendants had no claim for damages that they could enforce against the plaintiff. This question' was so
Fihding no error in the record, the judgment and order of the circuit court denying a new trial are affirmed.