13 S.D. 279 | S.D. | 1900
This is an action in claim and delivery to recover the possession oí a certain threshing outfit, consisting of a steam engine, separator etc., and certain other personal property, under and by virtue of a chattel mortgage given by the defendant to 'secure two certain promissory notes aggregating the sum of $450 and interest. The defendant answered, admitting the execution and delivery of the two notes and chattel mortgage and pleaded by way of counterclaim, in effect, as follows: That on or about the 20th day of February, 1896, the plaintiff, by its agent, demanded and ordered of defendant that he insure the threshing engine and outfit described in plaintiffs complaint, in the sum of $1,000, as additional security to the said company for the indebtedness due from the defendant; that at said time the plaintiff, by its agent, took the defendant’s application for insurance, and agreed that, if the company could not at once and immediately place the same, it would carry the risk itself; that relying upon and placing confidence in, the representations and agreement so made, the defendant on the 20th day of February, 1896, made application for said insurance on the said property in the sum of $1,000; that in payment for said insurance the defendant executed and delivered to the plaintiff his promissory note, payable on the 1st day of October, 1896, for the sum of $22, as premium; that on the 13th day of May, 1896, the said property was damaged and injured by fire to the amount of $515; that immediately thereafter the defendant notified the plaintiff of said loss, and requested payment of said damage; that the plaintiff refused and still refuses, to pay the same; that at the time of the said fire, and for a short time thereafter, plaintiff was in the possession of, and own,er of said promissory note given for the payment of
The objection that the answer by way of counterclaim did not state facts sufficient to constitute a counterclaim was taken in several forms during the trial. The appellant contends that, if there was any liability on its part, it was not upon any contract to insure the property, or to pay the damage in case of loss, but that its only liability, if any, was for its failure to have the insurance written, and that this would be a liability based upon a tort, and could not be counterclaimed against appellant’s claim in this action, which was based upon a contract; and particularly so as the action is one in-claim and delivery. Respondent, on the other hand, contends that the defendant’s
It is further contended on the part of the appellant that the motion for the direction of the verdict should have been granted for the following reasons: “(1) There is no evidence showing that the appellant expressly agreed to procure insurance for the respondent, or failed to procure said insurance through its fault or neglect. (2) There is no evidence tending to show that the appellant agreed to carry the insurance itself incase it could not have the policy written by an insurance company, no evidence having been introduced under this allegation of the answer. (3) The undisputed evidence of the appellant’s witness Bushnell shows that the company exercised due diligence in attempting to procure the insui’ance applied for, and was unable to do so, through no fault of the appellant, but for the reason that no company could be found which would write this class of insurance.” The only evidence upon this subject-was that of the defendant, Darnall, who testified as follows: “The business transactions I had with the company were in the summer of ’9-f or ’95. I purchased a separator from them, with feeder and attachment. I have heard the testimony of the plaintiff as to these notes. They were given for the purchase of this machine. About the 20th of February, 1896, the company’s collector called on me at my place, and wanted me to pay the note that was due at that time, and I could not. He said that, if I couldn’t pay, I would have to renew and give additional security; and after we had the papers drawn up he
It is further contended by the appellant that it was error for the court to refuse to direct a verdict for appellant upon the ground that when the loss occurred the property was being used at a time and in a manner and at a hazard which would not have been covered by the policy of insurance provided for in the application, had any been issued. It appears from the application that the appellant was requested to procure insurance on the engine for §500, •while not in use, and located in sheds on S. E. section 35, township 115, range 52, Hamlin county, S. D., and also for a threshing permit while in use in the counties of Hamlin and Deuc4 for the term of three months from August 20, 1896. It appears from the evidence in the
It is further contended on the part of the appellant that the respondent was not entitled to recover the valne of the self-feeder, as that was not insured specifically, and was not part of the threshing outfit. But we are of the opinion that under the evidence it was properly treated by the court as a part of the outfit. It is true, the feeder was sometimes used with the outfit, and at other times was not used. But as it clearly appears from the evidence of the respondent that the separator would not have been of the value mentioned without the self-' feeder, and that he regarded the feeder as a part of the outfit, we see no error in the court’s holding that in this case it did constitute a part of the outfit.
The appellant further claims that the court erred in its instructions to the jury, by assuming that certain facts bad been proven in the case, as to which there really was no evidence. But, upon an examination of the instructions, we fail to find any error of the nature claimed, and the facts apparently stated by the court as proven in the case were simply stated as the facts claimed to exist on the part of the respective parties. We are of the opinion that the issues in the case were fairly submitted to the jury.