15 S.D. 370 | S.D. | 1902
This is an appeal from a judgment in favor of the plaintiff. The cause of action is stated in the complaint as follows : “That on or about the 20th day of October, 1892, the plaintiff, at defendant’s request, entered into a contract with one Joseph S. Kenefick to erect and construct a house on the above described premises, ready for lathing and plastering, at the agreed price of fifty dollars, for which defendant agreed to pay plaintiff.” The answer was a general denial. The case was tried to a jury, and the defendant, at the close of the plaintiff’s evidence, moved the court to strike out the evidence of the plaintiff for the reason that it appeared from the same that he had not made a contract with
It appears from the evidence of the plaintiff that in 1892 he had a conversation with the defendant in regard to the building of a house on the farm then occupied by a brother of the defendant; that he had told the plaintiff his brother had the plan, and was in town, and requested the plaintiff to see him; that he saw the brother and the plan. And he further testifies: “I saw Joe, and after-wards saw the defendant, and said I would erect the house for $50. I told him I had talked with Joe, and he said I could build it; and then I said to defendant, T cannot on Joe’s account.’ De
Some time prior to the trial the parties stipulated that the case should be tried 'by the court upon ten days’ notice to the defendant or his attorneys. When the case was called for trial, counsel for the plaintiff stated that the plaintiff was unable to comply with the stipulation, for the reason that the court had declined to try the issues of fact in the case without a jury, and asked to be relieved from the stipulation. This request was granted, the court stating that it had informed counsel for both parties that it would not try the case in vacation, and that the case was one for a jury, and it declined to act under the stipulation. To which ruling the defendant excepted. The defendant contends that the court erred in relieving the plaintiff from the stipulation, and in declining to
The judgment of the circuit court is affirmed.