135 N.W. 715 | S.D. | 1912
In this case, plaintiff, in his complaint, substantially claims that he contracted with defendant to purchase some 2,000 bushels of seed corn, guaranteed or warranted by defendant to stand a germinating test of go per cent, or better, at $1 per bushel, to be delivered to plaintiff at his place of.business in Vermillion; that he paid to defendant $775 to apply on said contract; that defendant delivered a portion of said corn; that the same failed to come up to the guaranteed test of go per cent., but only would test about 60 per cent., and by reason thereof plaintiff refused to accept more of said corn; that of said corn delivered to plaintiff he kept 100 bushels, and returned 114 bushels to defendant by delivering the same at the elevator of one Thompson, at the request of defendant; that the 100 bushels of corn so kept by plaintiff was reasonably worth 50 cents per bushel. Plaintiff seeks by this action to recover $775, less the $50, the value of 100 bushels kept by plaintiff. On the other hand, defendant, by his answer, in substance claims that he sold to plaintiff 3,500 bushels of corn, at $1 per bushel, without warranty of any kind or nature; admits that plaintiff paid him $775 on said contract, and alleges that he hauled and delivered to plaintiff 214 bushels of said corn,
Thompson on Trials (section 2310), in considering this rule, says: ‘‘The sound rule is believed to be that the instructions have no connection with the pleadings, except through the evidence. The jury ‘find from the evidence,’ and not from the pleadings. The pleadings are intended to apprise the opposite party of the ground of action or defense, and to guide the court in admitting or rejecting evidence. The jury have nothing to do> with, them, and are not permitted to take them to their room when they retire ; and it is unprofessional for counsel to comment on them to the jury, nor should the court permit it to be done. Suppose, then,. that facts come out in the evidence broader than those alleged in the pleadings, or otherwise varying from them. Is the judge to instruct the jury upon the whole evidence, or is he to limit his instructions to so much of the evidence as is within the scope of the pleadings ? The proper answer is believed to be this: If neither of the parties has objected to the evidence on the ground of variance, the judge is- to instruct the jury upon the whole evidence: the rule being that a variance between the pleadings and the evidence is no ground of error, unless the evidence was objected to on this ground at the time it was offered.”
It is obvious that this doctrine cannot be extended to cases where the evidence is so widely variant from the pleadings that the facts thereby established constitute a new or different cause of action, or would not have been, a proper subject for amendment of such pleading on the trial. The evidence of defendant as to his knowledge of the purpose for which the corn in question was 'purchased by plaintiff was part and parcel of the cause of action alleged in defendant’s counterclaim. In this case, defendant might have defeated an affirmative recovery by plaintiff by showing no express warranty of the corn sold, and in which case, if there was no recovery by defendant on his counterclaim, defendant would have been entitled ho a judgment for costs only, and a dis
We are also of the opinion there could be no prejudicial error, based on the rejection of this testimony, because it was wholly immaterial for any purpose. That corn raised during the year 1909 was generally poor and of a low grade was wholly immaterial to the issues. The subject of the sale was the particular corn of defendant; and what other corn, raised by some other person, or in some other year, was generally, as to soundness and grade, could have no possible bearing upon the quality of defendant’s corn, agreed to be sold to plaintiff. It is a matter of common knowledge that corn may generally be very poor and of low grade any year, and still some "persons may have and raise corn of the very best quality.
Finding no reversible error in the record, the judgment of the circuit court is afirmed.