28 S.D. 426 | S.D. | 1912
This is an appeal by the defendant from a judgment entered in favor of the plaintiff on a directed verdict and from the order denying a new trial. This is the second appeal in this action, the opinion on the former appeal being reported in 25 S. D. 119, 125 N. W. 572, in which case the judgment in favor of the defendant was reversed and a new trial granted. The contract constituting the basis of the action is fully set out in the former opinion, but, as the contract is short, we again reproduce it in this opinion. It reads as follows:
"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 bank safes, to be built in full accordance with specifications herewith submitted, for the sum of eight hundred twenty-five ($825.00) dollars, and your second hand 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 arc 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 in cash. [Signed] Manganese Steel Safe Co. By J. J. Deright & Co. B. W. Shyrock.
"The above proposal is hereby accepted subject to the approval of Pres, of board, and we agree to pay the sum of twelve-hundred & No-100 ($1,200.00) dollars for one No. 3 manganese steel bank safe, on the terms and conditions specified above. [Signed] First State Bank of Leola. By John J. Plepperle, Cashier.”
The law as thus stated was adopted by this court in the case of De Pue v. McIntosh, 26 S. D. 42, 127 N. W. 532, and in Sioux Remedy Company v. Lindgren, 27 S. D. 123, 130 N. W. 49, for the reason that the contracts in those cases were ambiguous and uncertain, and that, in order to properly construe the same, it was proper for the court to admit evidence of the prior negotiations between the parties and circumstances connected with the transaction. But in the case at bar we are of the opinion that the court committed no error in excluding the evidence offered b)r the defendant tending to prove the conversations and agreements between the agent of the plaintiff and the cashier of the bank, as such evidence was clearly inadmissible to contradict, modify, or vary the terms of the contract.
At the close of all the evidence, the plaintiff moved the court to strike out all of the testimony of the witness Hepperle, cashier of the bank, and that the court direct a verdict in favor of the plaintiff. The court granted the motion to strike out by ’striking out all the testimony of said witness, “except that part which related to the delivery of the safe,” and granted plaintiff’s motion for the direction of a verdict in its favor. What particular part of the testimony of the cashier of the defendant bank was stricken out does not appear by the record, and we. cannot, therefore, determine from the record whether or not the court committed error in striking out the testimony.
On August 21st the Mosler Safe Company wrote to the defendant the following letters, being Exhibits Nos. 3 and 4, which were admitted in evidence:
“Hamilton, Ohio, Aug. 21, 1907. First State Bank, Leola, S. D. — Dear Sir: We herewith hand you invoice stock instructions and bill of lading for safe shipped to you this day. AVe trust that it will reach you promptly, and that you will favor us with an early settlement. Thanking you for your patronage, we remain, Yours truly, The Mosler Safe Co.”
“The Mosler Safe Co. Hamilton, Ohio, Aug. 21, 1907. First State Bank, Leola, S. D.: All remittances must be sent direct to us. . No collections made by agents. To safe as per contract. .. . $825.00 and old safe. Terms, Cash.”
On October 11, 1907, the Mosler Safe Company wrote to the defendant the following letter: “Hamilton, Ohio, Oct. 11, 1907. J. J. Hepperle, Cashier, Leola, S. D. — Dear Sir: We thank you for your favor of the 8th with draft for $825.00 which amount we have placed to your credit, leaving the account open for the freight as per our letter of the 10th, and for which we would be glad to have you mail 11s draft. Please send us a testimonial covering the merits of the work. The old safe is subject to order of Deright & Co., Omaha, Neb., and w.e write them today to' advise you accordingly, and 3‘ou may comply with their instructions. Yours truly, Mosler Safe Co.” The admission of this letter, being Exhibit No. 1, was also objected to, and the objection sustained.
In excluding these letters (Exhibits Nos. 1 and 5), the court was clearly in error. It will be observed that by the first letter (Exhibit 5) the Mosler Safe Company acknowledged the receipt of the contract and promised to give it “prompt attention,” and
It will thus be seen that the Mosler Safe Company accepted the contract, inclosed to the defendant the bill of lading, received the draft for the $825, and modified the contract, so far as the delivery of the old safe was concerned. And it further appeal's from the testimony of the cashier of the defendant bank that the hank had received no directions from Deright & Co. as to whom the old safe was to be consigned, or where to be delivered.
While it does not appear affirmatively what the relations were between the Mosler Safe Company and the plaintiff in this action, it seems quite clear that it was authorized to receive the contract, the draft for the $825, and the old safe. As interpreted by this court in its former decision, the contract obligated the defendant to deliver the old safe on board the cars at Deola within a reasonable time after receiving the new one; but property cannot be delivered on board the cars, unless consigned to some one at some place. Assuming the contract provided that the old safe should be consigned to the plaintiff at Plainfield, N. J., such a contract was subject te> alteration or modification by a contract in writing. Rev. Civil Code, § 1287. Clearly it was competent for the plaintiff to have directed, in writing, the consignment of the old safe to any person at any place it desired, or that the defendant might retain it until otherwise ordered, and unquestionably this might have been done by thp authorized agent of the plaintiff or by its successor in interest by assignment or otherwise. Therefore, as the evidence offered by the defendant disclosés written directions from the Mosler Safe Company, in response to a written inquiry by the defendant, to retain possession of the old safe, subject to the order of Deright & Co., from whom no order was ever received, the defendant was not only authorized, but required, to retain it, provided it was justified in relying ttpon these directions
The exclusion of the two letters, therefore (Exhibits 1 and 5), and especially the letter modifying the contract as to the delivery of the old safe, was clearly error. Had these letters been admitted in evidence, it would not be claimed, we apprehend, that the court would have been justified in directing a verdict in favor of the plaintiff. It may be proper to remark that none of these letters and only part of the oral evidence was offered on the former trial.
Numerous other errors are assigned by the defendant to the rulings of the court excluding evidence offered by the defendant; but, in the view we have taken of the case, it will not be necessary to give these various assignments of error special consideration in this opinion, as the same questions may not arise on another trial.
For the error of the court, therefore, in excluding the two letters offered and in directing a verdict in favor of the plaintiff, the judgment of the court below and order denying a new trial are reversed.