25 S.D. 268 | S.D. | 1910
This is an appeal by the plaintiff from a judgment entered in favor of the defendant, and from the order denying a new trial. The action was instituted by the plaintiff to recover $100 alleged to have been advanced by him to the defendant, and $300 damages sustained by him by reason of the breach of the following contract: “Oct. 7th, 1907. I hereby agree to deliver to A. A. Olson 60 head of steers on the first day of January, 1908, at 4 cents .per pound, and agree to let him pick them out of my herd of cattle within one week from date. I hereby agree to feed these cattle corn at least once a day and put them in good condition for market, and I hereby acknowledge payment of $100.00 on same. [Signed] A. A. Olson. Frank R. Rydl/', The defendant in his answer admitted the making of the contract and receipt of the $100, that the live stock was selected by the plaintiff, and defendant denied each and all of the other allegations of the complaint. The defendant for a counterclaim alleges that he had fully complied with all the terms of the contract to be by him performed, and on January 1, 1908, he notified the plaintiff that he was ready to deliver the said live stock in accordance with said contract; that plaintiff refused to accept them, and informed -the defendant that he would not carry out the terms of said contract; that the'defendant thereupon shipped the said cattle to the Chicago market, for which he received net $1,326.21, which was the market value of said live stock at Huron on the 1st day of January, 1908; that the said live stock on the 4th day of January, 1908, at the Huron stockyards, weighed 48,520 pounds; and that at 4 cents per pound said live stock would have been of the value, under the terms of said contract, of $1,940.80; that the difference between the contract price of said cattle and the market price of said cattle on the 1st day of January was $614.59; that the defendant incurred expenses in attending said cattle to market
The plaintiff in his brief claim's that the record presents two questions for consideration, viz.: “(1) Was the difference between the contract price of 4 cents per pound and the amount realized on the sale. in Chicago the true measure of defendant’s damage? (2) Can the verdict for $254.72, which does not respond to the measure of damages as laid down by the court in its charge to the jury, be sustained?” It is claimed by the appellant that the evidence shows that the cattle weighed at Huron 48,520 pounds; that the contract price was 4 cents per pound, and, had plaintiff taken the cattle, defendant would have been entitled to $1,940.80 less the $100 received by him; and that defendant, in fact, received net for the shipment to Chicago $1,326.21.
It is contended by the appellant that the defendant’s measure of damages is determined by section 2303 of the Civil Code, which provides as follows: “The detriment caused by the breach of a buyer’s agreement to accept and pay for personal property, the title to which is not vested in -him, is deemed to be: (1) If the property has been resold, pursuant to section 2151, the excess, if any, of the amount due from the buyer, under the contract, over the net proceeds of the re-sale; or (2) if the property has not been resold in the manner prescribed by section 2151, the excess, if any, of the amount-due from the buyer, under the contract, over the value to the seller, together with the excess, if any, of the expenses, properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof, if the buyer had accepted it.” Section 2151 of the Civil Code reads as follows: “One who sells personal property has a special lien thereon, dependent on possession for its price, if it is in his possession when the price becomes payable; and may enforce his lien in like manner as if the property was
It is contended by the respondent that it was not necessary that the jury should have selected -the testimony of any one witness, and returned a verdict in exact accordance with such testimony; nor need the verdict correspond to any testimony with absolute mathematical accuracy, that the jury had befoi-e them a complete description of the live stock, and the testimony of various witnesses as to its market value, and from all this testimony it was the province of the jury to determine what the actual market
The first seven assignments of error we may regard as abandoned, as the learned counsel for the appellant has not argued either of those assignments, either in his brief or orally. The eighth assignment of error is: “The court erred in submitting to the jury the expense incurred by defendant in shipping the cattle to Chicago as an element of damages in this action.” Clearly this assignment is untenable, for the reason that by subdivision 2 of section 2303 it is provided that, if the property has not been resold in the manner prescribed by section 2151, the excess, if any, of the amount due from the buyer under the contract over the value to the seller, together with the excess, if any, of the expenses properly incurred in carrying the property to market over those which Avould have been incurred for the carriage thereof, if the buyer had accepted it, is recoverable by the party claiming a breach of the contract. And by the ninth assignment of error it is claimed that the court erred in submitting to the jury as a measure of damages the difference between the contract price and the net proceeds received by defendant for the sale of the cattle in Chicago. The court admitted in evidence the
It is contended by the appellant 'that, where the vendor retains the property without a sale according to law, it is immaterial whether he keeps the property or sells it. When the defendant tendered the cattle on January 1st at Huron, and the plaintiff refused to accept them, the rights of the parties were then fixed, and no subsequent act of sale of the property, except a sale in accordance with the statute, would alter or prejudice the rights of either party. If defendant had taken his cattle back to his farm, his right to damages would have been as complete as when he sold the cattle in Chicago. This proposition may be conceded,
Our conclusion, therefore is that the jury necessarily found by their verdict that the defendant had complied with the terms of his contract; that the plaintiff had failed to comply with the contract on his part; that the jury by their verdict have determined the amount of damages which the -defendant has sustained, and that there is ample evidence in the record to support the verdict. In our -opinion the court in its charge fully and fairly presented the case to the jury.
Finding no error in the record, the judgment of the court below and order -denying a new trial are affirmed.