*1 515 evidence mony spoliation this. admits It is the rule have not would creates an presumption inference 22A C.J.S. defendant. supported charges against 396, Oster, 377; Or. Law, 596, 232 v. Criminal State page § 616, 246 P.2d 87; Foreman, Cal.App.2d 376 P.2d People v. 491; United 979; 466, State, Bruck v. Ind. 193 N.E.2d denied, 343 Cir., 191 F.2d Remington, v. cert. States Evidence, Wigmore 72 S.Ct. 96 L.Ed. U.S. Edition, concedes 3rd 291. of the state The § against defend charges supported butts would have ant and therefore discarded. exclusively jury case was instructed to decide the produced in court.
on the evidence From that defendant agree record we unable to are cigarette butts. prejudiced by the destruction of the of error remaining assignments reviewed the affirmed. find merit. without WOLLMAN, HANSON, BIEGELMEIER, WINANS concur. JJ., P.J.,
FOSHEIM, RENTTO, Judge, sitting Circuit disqualified.
KIRKEBY, RENAAS, Appellant Respondent
(186 513) N.W.2d 1971) (File Opinion April 30, No. 10841. filed Rehearing June denied *2 plaintiff respond- & Issenhuth, Madison, and for
Arneson ent. ap- Lammers, & Madison,
Lammers defendant for and pellant. Judge.
BIEGELMEIER, alleged action on in this plaintiff request sold and delivered to defendant at his promis- 10 Silver Platter Cattle Feeders for which defendant paid $3,209.98 ed to which cash had been and goods a credit of $7.50 for returned left indebted a $702.08. for balance of general except
Defendant’s answer was defend- denial alleged ant admitted and feeders and sale jury by had been made full. was waived. Trial by The action was tried which court after plaintiff fact, conclusions of and a for law pro- sum $702.48 and interest were entered. Defendant posed findings conclusions, denied, which the court objected proposed plaintiff those and entered court. appears
It defendant conceived an for idea feed- cattle rough working er and made a farm; model which he used on approached plaintiff, manufacturer, machinist proposal with a manufacture that he and construct a model display plaintiff demonstration which did. There- after defendant asked the cost 10 of the got castings quotations foundry units. Plaintiff from a prepared and delivered Ex. 7 defendant before he started plaintiff’s exhibit, to manufacture the units. hand- This writing, paper parts consists of three sheets of on which the charges required plaintiff’s noted for listed detail with spool, frame, car- These are first sheets. etc. two Comp Unit” ried over to the third sheet titled “Net Cost complete It unit. testified was net cost of parts prior “All then carried the sheets cost of the two less & added the costs Parts Clutches Forks 144.80” and Comp total two $152.14”. these titled next “Net Spoiled lines Plus & Paint 100.00” read “Labor Parts Mfg Factory “Net Cost 252.14”. go
Thereafter decided to ahead and build the units. Plaintiff notified were finished defendant when pick and when he arrived them
presented with Ex. invoice for *3 including but stated was his date itemized, account to the it plus open There 10 units a miscellaneous was some account. gave plaintiff conversation which a check for after defendant copy $2,500. subtracted leav- Plaintaiff on defendant’s this ing sign a balance in- $709.98 and asked defendant to the $2,500, which he voice did. Exhibit following: printed had front the across the thereof per “This is in items statement following. payee Endorsement of will constitute paid”. in full when check is by longhand: Thereunder was written defendant platter 2500.00.” “10 Units for Silver feeder payment thereof. Plaintiff endorsed check and received oral court, considerable As is common tried the actions to testimony admitted, ob- much of it over of conversations was jection. poses question Exhibits Defendant’s brief the “Can cost) (the prepared itemized sheets as net full) (his printed check with notation the may they
changed by parol evidence”, contends altered paid in SDCL20-7-4 therefore has been full. not and many are cited accord satisfaction. authorities explain argues admissible to Plaintiff oral was writing, binding un- even contract in Ex. if was writing subject 53-8-7, der SDCL alteration new, invoice, Ex. when defendant superseding and of the written memorial transaction final complete. valid, and the of fact full as- are findings support sume the last to be a claim statement plaintiff’s they opinion, In theories. not. do our express express implied.
Contracts An are either words; an is contract implied one terms which stated in of which are contract one the existence and terms is manifested conduct. 53-1-3. SDCL Plaintiff’s request is that he sold and delivered to defendant his promised pay cattle $3,209.98, feeders for defendant which alleges express an contract to an exact amount. dispute is There no that defendant told to build the they dispute him; 10 feeders and were delivered to over per cost; the on Ex. 7 claimed unit it was to be and, thus, $2,521.40 for the Plaintiff 10 units. con- price per agreed tended unit had never been 26, 1967when defendant came for them and plaintiff presented loaded on his invoice, truck and Ex. day plaintiff 4, to defendant. The next mailed showing price itemized $320 statement each or $3,200total. alleged payment
Defendant’s answer in full and his evi- *4 supported but, dence that defense defense be- before that important necessary comes and the assumed issues for de- inquiry cision, the must be what claim of the against payment weighed. which the of defense One is to findings finding July searches in vain 26, the for that on agreed pay 1967 $3,209.98 either for complaint1alleges 10 $3,200 the feeders the as or as the item- July statement, 1, ized Ex. 17, invoice, and the 1967 Ex. findings state. The early relate matters such the as loading discussions, the of on the units defendant’s plaintiff presented truck, that defendant with a statement $3,200 for of which 10 was for the units and 1. As noted $3,209.98, earlier Ex. the invoice mise, “plus open for 10 feeder units a/c”. (not open complaint), earlier account mentioned in the gave plaintiff plain- that a check for tiff showed as credit the statement with a balance of a. findings $709.98and defendant the invoice. The then amounts) (omitting duplication recite: alleges
“that the Defendant the that claims ($2,500.00)payment by him to the Plaintiff against 1967 was in full of all claims him Plaintiff; the that the Plaintiff claims that ($702.48), together the amount of interest * * * ($49.92) the amount of total of ($752.00),. owing is due and from Plain- Defendant to (Emphasis supplied) tiff.” being finding expressly no There that defendant * * *
“promised ($3209.98)” sum the the 10 feed for complaint alleged, any express amount, ers their other or theory permissible, value if reasonable that the court any could not conclude defendant was indebted to findings support judg sum. ment; must the conclusions and are insufficient so to do. We have not overlook general finding allegations plain ed a all the that material complaint tiff’s been are true and facts contained therein
proved preponderance of the evidence. If in an every allegation answer a denial “material” of a Pettigrew, effect, is bad and no Mead v. 78 N. S.D. given finding any 945,W. Im cannot be effect fact. portant agreement parties issues were whether the made an prepared about the time the net cost exhibit was or time of of the feeders and. the fact payee would, had when clause endorsement of paid, units, constitute full etc. The findings on those issues. entitled to proposed findings engaged plaintiff
Defendant’s
pursuant
to construct
net
the feeders
cost statement
proposed
speci-
In some
others
raised these issues.
cases
may
deciding
appeal
fic
of an
well be the
factor
*5
testimony
transcript
un-
facilitate
necessary.
of the
it
requires
a re-
to make
thereon
Failure
Co.,
judgment.
Life
versal of
Bell v. Midland
Ins.
Nat.
102 N.W.2d
&
S.D.
v. Pro. B’men’s Life
Sabbagh
Co,
Ins.
79 S.D.
Turning now the defense of absent finding contrary, to the endorsement of an ac was ceptance agreement it with its in full that was a it when the check paid. was SDCL 20-7-4. The effect of 47.0236, section, then SDC was opinion, considered in recent McKeown, 391,2 v. Eberle 83 S.D. N.W.2d where the cashing was held of a with wording ex similar tinguished obligation though even for an amount the debtor admitted was due and needed no new consideration. claim No duress or fraud Erck appears. evidence of See Bachand, 69 S.D. assuming N.W.2d Even plaintiff’s claimed conversation with defendant when the loaded, feeders were thereafter endorsed the check with payment” the “full in it. clause Under the opinion Eberle and SDCL 20-7-4 constituted in full. this is reversed directions to dismiss the complaint.
RENTTO, J, WINANS, P. J, concur.
HANSON, J, dissents.
WOLLMAN, J, concurs dissent.
HANSON, Judge (dissenting). There is single simple issue action. involved this Plaintiff claims defendant owes balance on an ac- count. fully Defendant contends been paid. account has entirely The resolution issue matter credibility.
The agreement between the reduced to and is writing not free from uncertainty ambiguity. Consequently, oral necessary explain transaction. The trial observed court the witnesses and testimony. heard their determined credibility, He weight, and value of such bound evidence. it.
2. Where our cases are reviewed. *6 light independent appraisal most in a An the evidence of party prevailing must unfavorable to and to prerogative on in be made reverse. not our order to This is review. undisputed bunk ten evidence shows that after the
The completed Madison to came cattle feeders were to accept- pick units were them 1967. The ten and '(cid:127)Defenutant issued ed loaded truck. $2,500. his check to the amount delivered day pre- invoice was As a result pared by plaintiff showing the conversations an account between the the total $3,209.98. cost of ten This reflected the $9.98 manufactured units balance on $320 each a leaving a $2,500 earlier The a credit account. was shown as $709.98. balance due of invoice de- The was then Obviously, fendant. the trial court believed such evidence owing plain- and found the $709.98 sum from still due tiff to defendant. obviously
Just as the trial disbelieved court defendant’s payment $2,500 that the check was full price satisfaction the account. Defendant claimed according $252.14 the manufactured each units preliminary estimate, so, cost marked Exhibit 7. If de- given plus check fendant should he con- at the time took the units in order to payment according To his own calculations. stitute full oversight a check correct this for defendant later sent $2,500 and the amount the difference between the credit been. This claimed the units should have re- by plaintiff. fused and returned conduct does not Such square contention check was that the in full account. satisfaction of the used a account defendant In printed “En- letters which had thereon in small form payee will in full when dorsement check constitute paid”. signi- court did not We trial consider keep perspect- ficant factor. should also overriding importance assign of all view ive pointing to a case other facts and circumstances in the contrary conclusion. and conclusions are sufficient. Defendant
apparently knows what the court found and concluded. trial *7 objection exception made to their form No or taken as sufficiency. circumstances, insuffi- Under the if deemed by majority, the en- should be the case remitted cient try proper findings ex- The lack of and conclusions. predicate press finding should not be made as to for reversal.
I would affirm.
WOLLMAN,J., concurs in this dissent. Appellant Respondent TWYFORD,
STATE, 545) (186 N.W.2d 1971) (File Opinion May 4, filed No.