189 N.W. 517 | S.D. | 1922
Action on implied warranty of corn sold for seed purposes. There were separate appeals, one from the judgment, the other from an order denying a new trial.. The two appeals, were consolidated by order of the court, and are to be considered as one. The complaint charges a fraudulent conspiracy by the two defendants tO' sell to plaintiff certain corn to be resold for seed, knowing the same to be unfit for such purpose. After 'a careful examination of the entire record we find the following facts to be practically undisputed:
Plaintiff resided at Madison, Minn., and was engaged in the business of selling farm machinery and farm supplies, including seed corn, to farmers in that locality. The defendant Hamman is a farmer residing near Humboldt, S. D., and in the spring of 1918 had on hand 2,142 bushels of corn in three cribs gathered and cribbed in the ordinary way in the fall of 1917. Owing to climatic and other conditions during the summer and fall of 19x7, good seed was exceedingly scarce and unusually high priced in the spring of 1918. The defendant Erslcine was in the farm produce business at Humboldt, near Hamman’s farm, and knew that Hamman had this corn on hand in his cribs. In the spring of 19x8 Hamman received a letter from one Meyer, his wife’s cousin, who resided near Madison, Minn., ’asking about seed corn, and sample sacks of the corn selected from Hamman’s cribs were shipped to Meyer, who showed the corn to plaintiff, Jacobson, who said-he thought it was good corn. Meyer told him there was more of the same corn for sale at Humboldt, where his uncle lived. Jacobson went to Humboldt and saw Hamman and Erskine about the corn. There is a direct and irreconcilable conflict in the evidence as to what occurred and as to the conversations between the three men at that time. It is undisputed that
At the trial Jacobson testified, in substance:
That the shipping tag on the sample corn sent Meyer showed that Hamman was shipper; that when he arrived at the Hamman farm he found Erskine and another man sorting corn. That they had about 25 bushels sorted in a wagon box. That he looked it over pretty thoroughly, and knife-test'ed it. That it was a good average, and looked like the sample sent to Meyer. That after dinner he and Hamman went out together' where they 'were- sort
■ Plaintiff further testified .that he had asked Hamman if he had made any test of this corn, and that Hamman told him he had made three different tests, and that it tested from- 73 per cent to 95 per cent. This statement, if made, evidently referred to' sorted and selected seed corn, such as that exhibited in the wagon box by the crib. These statements are flatly disputed by Hamman and by Erskine and Smith, who were sorting corn.
The credibility of these witness was wholly a question for the jury. Bailey v. Walton, 24 S. D. 118, 123 N. W. 701; Unzelmann v. Shelton, 19 S. D. 389, 103 N. W. 646; Comeau v. Hurley, 24 S. D. 255, 123 N. W. 714; Olson v. Day, 23 S. D. 150, 120 N. W. 883, 20 Ann. Cas. 516; Kamp v. Madison, 38 S. D. 432, 161 N. W. 809; Peters v. Kerkiakedes, 27 S. D. 371, 131 N. W. 316; Barnard v. Tidrick, 35 S. D. 403, 152 N. W. 690.
The instructions of the trial court, while not excepted to, are made a -part of the settled record. They are exceptionally clear and complete, and the credibility of the witnesses was directly submitted to the jury. If the testimony of Jacobson was true, there was certainly a warranty that the corn he was to receive was to be selected so as to be of the kind and quality of that shown him in the Wagon box at the crib and the samples sent to Meyer. Upon that question the jury found that Jacobson told the truth, and that finding is conclusive upon this -court upon ’appeal.
It is appellant’s contention that plaintiff’s evidence is
Appellant further contends that, because plaintiff saw and examined and knife-tested some of the corn in the cribs, he cannot 'be held to have relied upon a warranty, or representations as to the kind and quality of corn he was to receive, and that thé rule of caveat emptor is controlling. In this contention appellant entirely ignores the conceded facts: First, that some part of the corn in the cribs examined was reasonably fit for seed, and that the corn shown plaintiff in the wagon box was of that kind; second, that the corn shown to plaintiff was in the cribs, and had not been sorted, and the part of it represented to be suitable for seed had not been selected out and exhibited to plaintiff and examined by him. In such case the rule of caveat emptor could have no application.
It was the seller’s business to sort the corn, so that the corn selected and shipped would correspond with and be similar in quality to that shown plaintiff in the wagon box. Plaintiff’s only concern was that he should receive corn of the kind and quality of that sorted out and shown to him.
Plaintiff and another witness testified at the trial that the shipping tag on the sample corn sent to Meyer, which was lost, showed Hamman to be the shipper. Erskine and Hamman testified that Erskine was the shipper. Appellant claims he was surprised by plaintiff’s testimony on that point, inasmuch as he thought plaintiff would tell the truth, because if he did not do so the shipping records at Humboldt would show the facts; that during the trial, and after plaintiff’s witnesses had testified as stated, he and his attorney went to the express office to find the record of shipment to dispute plaintiff’s evidence and sustain his
“We maintain there was accident and surprise which ordinary ■prudence could not have guarded against * * * because the plaintiff and his witnesses swore falsely, etc.
“The appellant had a right to expect the plaintiff and his witnesses to tell the truth.”
The rule seems to be well settled by the authorities that neither party is entitled to a new trial on the ground that he was “surprised” by the testimony of the adverse party. Travis v. Barkhurst, 4 Ind. 171; Helm v. First National Bank, 91 Ind. 44; Gardner v. State, 94 Ind. 489; Delaney v. Brunette, 62 Wis. 615, 23 N. W. 22; Beal v. Codding, 32 Kan. 107-112, 4 Pac. 180; Dimmey v. Railroad Co., 27 W. Va. 32, 55 Am. Rep. 292; Atkinson v. Conner, 56 Me. 546; Blake v. Madigan, 65 Me. 522; Beckford v. Chipman, 44 Ga. 543; Whitman v. Leslie, 54 How. Prac. (N. Y.) 494. And it is even held that reli ance upon the unsworn statement of an adversary witness as to what will be his testimony is not the exercise of ordinary prudence, and surprise resulting therefrom, whereby a party goes to trial without witnesses to prove the real .truth, is not ground for a new trial. Pittsburgh, etc., R. R. v. Sponier, 85 Ind. 165; Klockenbaum v. Pierson, 22 Cal. 163; Armstrong v. Davis, 41 Cal. 499.
Furthermore, it is the settled rule of law in this, as in other jurisdictions, that the right to a new trial on the ground of surprise is waived if, when the surprise is timely discovered, it is not made known to the court, and no motion is made for a continuance of the cause on that ground. Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 18 South. 175, 54 Am. St. Rep. 175; Wells v. Wells, 27 S. D. 257-261, 130 N. W. 780; State v. Barnes,
The existence of this alleged newly discovered evidence was easily ascertainable pending the trial, and, if deemed vital or important, could have been made the ground of a motion for a continuance even if it be assumed that plaintiff’s testimony constituted “surprise” within the meaning of the statute, and the failure of appellant to call it to the attention of the trial court by a motion for continuance was a waiver of the right to claim surprise or due diligence in meeting the issues presented at the trial. The rule is founded upon the well-settled principle that a party litigant cannot take his chances of winning in the absence of material evidence, and, being defeated, demand a new; trial on the ground of surprise.
Appellant assigns numerous ’ errors in receiving and excluding evidence, and alleges excessiveness of the verdict. We have carefully considered all the assignments not herein discussed, -and are satisfied that the record discloses no prejudicial error.
The order and judgment of the trial court are therefore affirmed.