25 S.D. 119 | S.D. | 1910
If appears from the record that respondent, First State Bank of Leola, agreed to purchase from appellant, Manganese Steel Safe Company, a certain bank safe under the following written contract:
“July 22, 1907. First State Bank, Leola, So. Dak. We hereby agree to deliver, f. o. b., cars our works, Plainfield, N. J., one of our No. 3, manganese steel safes to be built in full accordance with specifications herewith submitted, for the sum of eight hundred twenty five ($825.00) dollars, and your secondhand Chicago No. 6 safe and time lock f. o. b. Leola, payable in New York funds, upon delivery of safe. This contract covers all agreements between the parties hereto. All claims covering verbal agreements of any nature not embodied herein are hereby waived. All orders must be on this blank and are subject to the approval of the home office of the Manganese Steel Safe Co. Said safe shall remain our property until fully paid for. [Signed.] Manganese Steel Safe Co.
“The above proposal is hereby accepted subject to the approval of Pres, of board, and we agree to pay the sum of twelve hundred ($1200.00) dollars for one No-. 3 manganese steel bank safe on the terms and- conditions specified above. First State Bank of Leola, by John J. Plepperle, Cashier.”
It further appeared that the Manganese Steel Safe Company approved said contract, and notified defendant thereof, and thereafter, about September 20, 1907, the said manganese steel safe was shipped to and received and accepted by defendant, and defendant paid to plaintiff $825 on the purchase price under said contract. It also appears that the secondhand Chicago No. 6 safe and time lock of defendant were never delivered to plaintiff f. o. b. Leola, or elsewhere, but that the same has at all times remained in the possession of defendant. Plaintiff brought this
On the trial plaintiff offered some testimony tending to show that the secondhand safe and time lock had been injured by burglary while being used by defendant, and after the entering into of said contract, and to the introduction of which evidence the defendant objected, on the ground of immateriality, and the objection was sustained, and plaintiff excepted. We are of the opinion that such testimony was immaterial, and properly rejected. Under a contract of this character the title to the secondhand safe and time lock remained in defendant at all times until defendant performed, or duly offered to perform, its part of the contract by delivering the secondhand safe and time lock f. o. b. cars at Leola. In order to pass title to the secondhand safe and time lock to plaintiff it was incumbent on defendant to perform his part of the contract by placing the same on board the cars at Leola free of expense to plaintiff; and, having failed to do so, plaintiff was entitled to recover the balance of the purchase price, and it was immaterial to plaintiff, under the circumstances, as to what became of the secondhand safe and time lock.
Respondent contends that plaintiff has mistaken its remedy; that by reason of -the fact that the contract provides that title to the manganese steel safe sold to defendant should remain in plaintiff until fully paid for prevents plaintiff from recovering the purchase price. But we are. unable to agree with respondent in this contention. Respondent cites Dowagiac v. Whiterock Lumber Co., 18 S. D. 105, 99 N. W. 854, as controlling this cause on this proposition. It will be observed that the decision in that case
The judgment of the circuit court is reversed, and a new trial ordered.