12 S.D. 632 | S.D. | 1900
Before proceeding to the merits of this case, we will dispose of a motion to dismiss the appeal for the following reasons: “(1) That a copy of the undertaking on appeal was never served on the respondents, or their attorneys
The remaining point is whether the court committed error in refusing to give the following instruction, proposed by counsel for appellant at the conclusion of all the testimony: “The jury are instructed to return a verdict for the defendant, because the contract in this case, being in writing, cannot be altered except by a contract in witing, or by an executed oral agreement; and there is no evidence of either a written consent to alter or of an executed oral agreement to alter it.” Without giving the testimony of the various witnesses in .detail, it is safe to conclude that there is substantial evidence to sustain every allegation of the complaint relating to the alleged subsequent verbal agreement modifying the original written contract. As the evidence shows that it was impossible to use a continuous string of 4.]- inch casing from the top to the bottom of the well, respondents had a clear right, under the written contract, to use 3 inch casing, and to collect, in that event, $950 for the well. While there is testimony tending to px’ove that appellant, instead of having the well encased with this 3 inch material, permitted the use of some 6 inch and some 3-|- inch wrought iron piping, and orally agreed to accept the same, it does not affirmatively appear that he agreed to accept the well, and pay the sum of $1,500 therefor. If we assume that he did in a formal manner orally accept the well as an entirety, and