21 S.D. 628 | S.D. | 1908
This action was instituted by the plaintiff to recover a balance claimed to be due him on- a contract entered into between him and the defendant. From a directed verdict in favor of the plaintiff the defendant Eittle has appealed, he being the only person served or appearing in the action. The material part of the contract made the basis of the action and set out in the first paragraph of the complaint is as follows: “That for and in consideration of the sum of two1 hundred ($200.00) dollars per month, paid in cash on the l'oth day of each month to the party of the second part by the parties of the first part for a term of twenty-four (24) months begnining with the 1st day of April, 1903, the said second party hereby binds himself to devote his entire and undivided services for the absolute benefit of the said first party for the said term of months as above written. The nature of the said services to be performed by said second party is at all times to be determined by the said first parties; said services to be performed to’ be confined to the United States.” Plaintiff alleges in his complaint that pursuant to1 the terms of said contract he performed work and services as a mining superintendent for the
As showing the circumstances attending his employment, the plaintiff upon cross-examination testified that the defendants Little
It is contended by the appellant -that there was • in fact a substitution of a new debtor in place of the old one, and that the only element of a novatiop as to which there was no¡ positive or direct evidence was at to- whether this submission was with intent to release the defendants and that whether or not such intent existed was a question of fact for the jury, to be gathered from the circumstances- and conduct of the party, and was not a question
As we have seen, it appears from the evidence that defendants Little and Westby went t0‘ the Hills country to secure mining claims for the purpose of organizing mining companies, that the plaintiff was employed by them to assist them by reason of his mining experience in securing mining claims for the purpose of organizing such companies, that options were taken upon mining claims by Lemon in the name of Little instead of the joint names of Little and Westby, and that the defendant offered to show by ■his evidence that he and Westby were equally interested in the stock of these companies. It was competent, therefore, for the de
It is quite clear that the plaintiff, by reason of the commission contracts made payable to himself, could not give to the defendants the benefit of his unbiased judgment as to' the value of the mining properties ou which he was taking options; and it is not surprising, in view of these commission contracts taken by him, that the plaintiff in his letters to defendant Little spoke in the highest terms of the mining properties included in the option contracts, and sought to impress upon the said defendant the great value of these mining claims. The situation of the plaintiff was one which an agent could not safely assume while acting as such agent,, and it would be a reproach upon both law and justice to permit a person under those circumstances to> recover for services claimed to have been rendered under the evidence offered and excluded in this case. The court was clearly in error, therefore, in excluding defendant's evidence tending to' prove that the option contracts though made in Little’s individual name, were for the benefit of himself and his codefendant Westfoy, and in excluding defendant’s evidence offered tending toi prove that the plaintiff had received ;commission¡a and commission contracts from the parties executing the option contracts in the name of defendant Little. It is quite apparent - from the rulings of the learned circuit court in this case that it adopted too technical a rule in the
If, as contended- by the defendant in the case at bar, the plain
The judgment of the circuit court and order denying a new trial are reversed, and new trial is granted.