8 S.D. 19 | S.D. | 1895
Based upon a claim of ownership and right to immediate possession, this action is against a sheriff, in claim and delivery, to recover the possession of an invoice of merchandise sold and delivered by plaintiffs to the firm of Lavender & Spannagel, and afterwards seized and sold under an execution issued upon a judgment against said firm in favor of one Bogart, another creditor of the partnership. It is alleged and claimed that, by reason of, and relying upon, certain false and fraudulent representations made by the firm of Lavender & Spannagel, respecting their financial condition, plaintiffs were induced to sell and deliver to said firm the property described in the complaint, and, in consequence of said financial property statement and false represen cations, they now claim the right to rescind the sale, and reclaim the possession of said property from the sheriff. The defendant justified the seizure of the property under the execution, and denied the allegations of fraud. The case was tried to a jury, and resulted in a verdict in favor of defendant and against plaintiffs, and from an order
The firm oí Lavender & Spannagel were government contractors, copartners, engaged in buying and selling live stock, and in keeping a general retail store. On the 10th day of February, 1890, for the purpose of obtaining credit with the plaintiffs, a copartnership engaged in the wholesale mercantile trade, and in response to an inquiry concerning their financial condition, Lavender & Spannagel made and delivered to, and upon a blank furnished by, plaintiffs a statement of their assets and liabilities; and again, on the 21st day of July, 1890, when plaintiffs were considering the propriety of extending to them further credit, by the sale and delivery of the goods in controversy, and in response to a request for a full and complete statement, they informed plaintiffs' that their assets and liabilities were practically the same as shown by the statement of February 21, 1890. In the enumeration of liabilities contained in such statement, opposite the item ‘Owing on any other debt, of any kind whatever,” there was some ambiguity, and a dispute arose at the trial as to the amount specified. Mr. Spannagel, who prepared the property statement, testified positively that the amount was $20,000, and was so represented upon the statement of assets and liabilities when the paper left his -hands, upon its way to plaintiffs. Mr. Wheeler, a member of the partnership plaintiff, testified, in effect, that the item was $2,000, as he read it, when the statement was first placed in his hands by his assistant credit man, and that certain changes have since been made upon the paper; and in this he was corroborated by two witnesses, who testified that the amount was $2,000 when it reached plaintiffs’ office, and that since that time an additional cipher has been placed in the debit column, and the amount changed to $20,000. The question was submitted to the jury under a proper instruction, and being material, and at issue, and there being a direct conflict in the evidence involving the veracity of witnesses, and the jury having returned a general
In support of the allegations of their complaint, and as a basis for the introduction of a letter under date of July 21, 1890, addressed to plaintiffs by Lavender & Spannagel, in response to an inquiry concerning their financial condition, in which they assured plaintiffs that their assets and liabilities were ‘ ‘practically the same as last spring, when you received statement from us,” the following report, to which said letter related, was offered and received in evidence:
“Scotland, 2-10, 1890.
‘ ‘The following is a statement of our assets and liabilities, made to Tootle, Hosea & Co., for the purpose of obtaining credit with them:
ASSETS.
Merchandise on hand, present value, about. $ 18,500 00
Amount due on notes and accounts, about. 14,500 00
Beal estate, stores, corn cribs, four lots, stock sheds, yards, scales, and fixtures, etc.,. 7,500 00
Personal property: 152 fat cattle, steers, 130 head hogs and 25 hogs on feed. 8,000 00
About 4,000 bushels of corn, horses and wagons . 1,100 00
Cash on hand and in bank. 250 00
Fifty-one per cent of $5,600.00 in creamery shares paid in. 2,856 00
LIABILITIES.
Owing for merchandise, about. $ 12,000 00
Borrowed money, banks, and cattle. 10,000 00
Mortgage on real estate. 1,800 00
Owing on any other debt of any kind whatever. 20,000 00
“We cannot give you exact figures, as we have not taken inventory this year, and don’t claim above statement exact to the letter or figures, but nearly so. ‘How much insurance have you?’ $13,500.00. ‘Are you doing a credit or cash business?’ Both. ‘How long have you been in business?’ A. Lavender, 15 years; as Lavender & Spannagel, 3£.
Lavender & Spannagel, Scotland, S. D.”
“Scotland, South Dakota, 2-10, 1890. Messrs. Tootle, Hosea & Co., St. Joseph, Mo. — Gentlemen: Inclosed please find statement as requested. We have not yet taken inventory for this season, as we usually do so when we clean up our cattle and hogs, running account together. However, same is not far from the figures. Respectfully,
Lavender & Spannagel.”
For about two and one-half months prior to the date of the letter addressed to plaintiffs, in which they stated that the assets and liabilities of their firm were practically the same as when the itemized statement was made, Lavender & Spannagel had done business at a bank then owned and operated by the witness C. G. King, and the ruling of the court in sustaining an objection to -the following question propounded by plaintiffs’ attorney is urged as error: ‘‘Were they in the habit of depositing drafts drawn by themselves upon foreign correspondents?” The relevancy of the evidence to which this preliminary question related was not apparent when the question was asked, and it is still quite doubtful whether such testimony was admissible for any purpose. Counsel should have either informed the court of the purpose of such evidence, or made an offer upon the record to prove specific facts. An affirmative or a negative answer to this question would have done the appellants no good. It is a matter of common knowledge that this may be and is constantly done by business men, innocently and legitimately. If the question was simply prefatory to something which might be material, appellants should have offered to prove such material thing, and the exclusion of such evidence, if material, relevant, and competent, would have been error. Hanson v. Township of Red Rock (S. D.) 63 N. W. 156. Furthermore, the witness was not shown to be sufficiently familiar with the general business habits or usages of Lavender
The witness Spannagel was asked to state who purchased the property in controversy at the execution sale. As the purpose of the evidence does not appear, and the inquiry itself suggests the existence of a bill of sale and return of the officer, the court properly sustained an objection to the question, on the specified ground that the same »vas “incompetent, immaterial, and not the best evidence.” Neither was it error to exclude evidence as to the amount that Lavender & Spannagel had been able to pay on their indebtedness since the seizure of the property and the closing of their store by the sheriff on the 12th day of August, 1890.
Although it is urged in the brief of counsel for appellants that the court committed error in ruling upon the foregoing and numerous ■ other questions, the only error of that character specified, or in any manner alluded to, in his statement of the case, containing exceptions upon which the motion for a new trial was heard and determined, is the following: “The court erred in sustaining defendant’s objection to the introduction in evidence of Exhibits N and 0.” Had the appeal been taken from the judgment without a motion for a new trial, errors of law occurring at the trial, and duly excepted to, when properly presented, may be reviewed; but when an appeal is taken from an order overruling a motion for a new trial only, the errors of law relied upon must be specified and presented to the trial court upon the motion for a new trial, in order to be available on appeal. It would be manifestly unjust to say that a trial court, upon its own motion, must examine and consider, upon the hearing of a motion for a new trial, all its rulings upon questions of evidence, without having its attention in any manner directed thereto; and such a holding would enable a party to demand a new trial upon one record, and have the action of the trial court in refusing to grant the same reviewed upon a
Numerous errors may occur on the trial, and be excepted to, and it is but fair to presume that all of such as are relied upon will be presented to the trial court, and urged as a ground for a new trial. When no appeal is taken from the judgment, only such errors of law occurring at the trial, and excepted to, as were presented to the trial court, will be reviewed upon an appeal from an order overruling a motion for a new trial. Each ruling must be specified. Coleman v. Gilmore, 49 Cal. 340; Beal v. Stone, 22 Iowa 447; Raymond v. Thexton, 7 Mont. 299, 17 Pac. 258; Street v. Mining Co., 9 Nev. 251; Elliott v. Woodward, 18 Ind. 184; Snodgras v. Hunt, 15 Ind. 274; Putnam v. Railway Co., 22 Mo. App. 589; Elliott App. Proc. par. 853. As it is quite evident that counsel for appellants did not regard the alleged errors of law omitted from the statement settled by the court of any importance, and that the respective rulings of the court thereon would be sustained on review, we deem this an expedient and opportune time to announce and apply the rule of practice above stated.
To the ruling of the court upon appellants’ offer to introduce in evidence Exhibits N and O we will now direct our attention. Exhibit N purports to be a statement of assets and libilities, made by Lavender & Spannagel to a Chicago firm on the 3d day of February, 1890, but, as' it was shown that the same had been materially changed since it left their hands, its inadmissibility is conceded by counsel for appellants. Exhibit O was a similar statement, made by the same firm to the Credit Guaranty Company of Minneapolis on the 2d day of May, 1890;
At the conclusion of the introduction of evidence, counsel for plaintiffs moved upon the case, as made, for the direction of a verdict, and, as all remaining questions are incidental thereto they will receive merited consideration, in determining whether the trial court committed error in denying said motion. It ap
It was said by Judge Brewer in Lumber Co. v. Ott, 142 U. S. 622, 12 Sup. Ct. 318, that ‘ ‘the fact that a debtor, in rendering a statement of his financial condition to a creditor, largely overestimates the value of his property, does not establish a fraudulent intent, when he specifies the various items of his property, thus enabling the creditor to make further investigation as to their ?alue. ” Upon the record, as presented, we cannot say that the trial court abused its discretion in denying the motion for a new trial, and the order appealed from is affirmed.