176 N.W. 740 | S.D. | 1920
In thiis action there was verdict directed and judgment rendered in favor of plaintiff, from which defendant Billinghurst appeals.
It appears from the record that in December, 1911, the respondent purchased from the Unitype Company a typesetting machine for $1,500, under a conditional contract of sale which provided for a cash payment of $50, and the balance in notes of $25 each, payable each consecutive month thereafter until the full payment of said purchase price; that title to said machine should remain in said Unitype Company until full payment, ( and which contract was duly filed and placed of record; that thereafter, in April, 1913, respondent sold and delivered said machine to the Messenger Publishing Company; that said Messenger Publishing Compaq, as part of the consideration of said contract of salé, in writing, express^ assumed and
Klapworth v. Dressier, 13 N. J. Eq. 62, 78 Am. Dec. 88.
In this case there was an express agreement and an express
Appellant also- urges that there was no obligation resting on him to pay said indebtedness for the reason that said contract of sale between said Unitype Company and respondent had been rescinded. We are of the view that the evidence fails to show! rescission or any right of recission or any failure of consideration. We are of the opinion that no defense of any kind was shown or established by the evidence against the respondent’s • cause of action.
“Where a person not a party to an action will be liable to another who is a party if the latter’s claim or defense shall fail, and such person has notice of the action and opportunity to participate therein in defense and maintenance of his position,*613 lie will be -bound by the result the same as if he were a party to such action.”
See American Candy Co. v. Insurance Co., 164 Wis. 266, 159 N. W. 917.
All assignments of error have been carefuly considered.
Finding no error in the record, the judgment and order appealed from are affirmed.