25 S.D. 69 | S.D. | 1910
An action was brought in the circuit court of Spink county, where a jury trial was had, resulting in a verdict and judgment for plaintiff. A motion for a new trial was overruled, and an appeal from the judgment and order denying a new trial brings the case here for review. A brief statement of the issues and the evidence at the trial are necessary to a proper
The complaint alleges, in substance, that in the fall of 1906, the defendant promised and agreed with the plaintiff to rent, and did rent, of this plaintiff one threshing engine, for the use of which he was to pay to' plaintiff, according to the terms of said agreement, the sum of $10 per day; that thereafter during said year, the defendant did take, use, and operate -the said threshing engine, for his own use and benefit, for the period of 18 days— with prayer for judgment. The answer is a general denial. At the trial an objection was made to any evidence under this complaint, for the reason that the same does not state a cause of action, which was overruled, and error is assigned. There was no error in this ruling. See Strait v. City of Eureka, 17 S. D. 326, 96 N. W. 695.
Upon the trial ruling's were -made by the court upon defendant’s objections to certain questions as leading and suggestive, all of which we have carefully considered, but do not deem it necessary to discuss them, as in our judgment they clearly fall within former rulings of this court in Freeman v. City of Huron, 10 S. D. 368, 73 N. W. 260; Holdridge v. Lee, 3 S. D. 134, 52 N. W. 265; Bedtkey v. Bedtkey, 15 S. D. 315, 89 N. W. 479; State v. Bunker, 7 S. D. 639, 65 N. W. 33.
Appellant in his brief contends that there are only two possible theories upon which the plaintiff can recover in this action: First, by alleging and proving ownership of the threshing engine; or, second, by proving a binding agreement with the owner of the property, under which plaintiff was authorized to rent the threshing engine and collect the rentals. Conceding this to be true, a brief examination of the evidence and the issues submitted to the jury becomes necessary. The evidence in the record shows that some time in 1901, one Herb- Harris purchased a threshing-rig from ithe plaintiff, and gave back a mortgage on the same for a part of the purchase price, and later lost the separator, but in what manner does not appear; that at' the time of the various negotiations hereinafter referred to this chattel mortgage remained due and unpaid, and the plaintiff had been pressing
Mr. Child testified that : “Mr. Jenkins said he wanted to rent the engine, and would give us $10 a day for the use of the engine. I told him all right; he could have it. He told me he would give $10 a day for the use of the engine, if we would let him have it until he got through threshing.” J. B. Lundy, a witness on behalf of plaintiff, -testified: “I had a conversation with Mr. Jenkins relative to renting the engine. He met me on the street and said: T have rented that engine of Harris’ of Child, and am to give him so much a day. Now, you won’t jump up and take it, will you?’ Mr. Jenkins and I went to the office, and Je'nkins said he would give us so much for the use of the engine, providing- we would let him have it until he got through threshing, but did not want to buy a separator and have us take the engine away from him -after he bought the separator. He said he-would pay $10 a day for the use of the engine.” On the contrary, the defendant Jenkins testified in regard to this conversation with
The record also discloses the fact of the plaintiff’s contention before the jury that no contract of rental was in fact ever made between Harris and Jenkins, and that such alleged renting was merely an afterthought, a pretense, through which Harris and Jenkins were seeking to appropriate the rental of the engine for their own benefit, and defeat the plaintiff’s rights. Under the instructions .of the court, this contention became vital to the plaintiff’s recovery in the action. The jury were told by the court: “If you should find that such lease (between Child & Co. and defendant, Jenkins) had been made, * * * but that Harris revoked the right's of Child & Co. by leasing the rig himself (to Jenkins), then you must find for the defendant.” This instruction was very favorable to the defendant, and under it the jury
Appellant in his brief and argument contends that there are but two theories upon which the plaintiff can recover in this case: First, that the plaintiff was the owner of the engine, and entitled to the rentals thereof as such owner; second, that the plaintiff had a binding 'agreement with the owner of the engine, by which it was authorized to rent the engine and receive the rentals therefor. Appellant also contends that the entire record shows that the plaintiff claims to recover, under the former theory, namely, as 'owner of the engine. But no such allegation is made in the complaint, nor do the instructions of the court in presenting the issues co the jury make any such assumption. On the contrary, the question of the plaintiff’s ownership of the engine was, by the instructions, entirely eliminated, as the case was given to the jury. These instructions were not excepted to, nor was any objection made to the theory of the charge. Appellant cannot now contend, in the absence of any requests for instructions, that the case was tried, or should have been tried, upon a different theory of the facts or law.
Appellant’s entire argument is upon the theory that the contract of sale of the engine by Harris to' the plaintiff, being ex-ecutory and not in writing, was void under the statute of frauds, and that the evidence does not show a sufficient consideration to support the contract of sale. This argument appears to be founded
No question as to the sufficiency of the evidence to sustain the findings of the jury under this theory is presented to the court upon this appeal; and, as we find no error in the record, the judgment and order of the trial court are affirmed.