11 S.D. 521 | S.D. | 1899
A breach of warranty as to the quality of certain binding twine, purchased by the defendant F. R. Wright from the plaintiff, was the only defense relied upon in this action to recover the amount of a promissory note given in settlement therefor, and this .appeal, taken by plaintiff from judgments in favor of defendants, presents some questions pertaining to the law of evidence which, on account of their importance, require most careful consideration.
It appeared at the trial that respondent F. R. Wright, a resident of Rowena, S. D., gave to appellant, of 143-5 Monadnock Block, Chicago, 111., an order for 15,000 pounds of binding twine, and soon afterwards sent from Sioux Falls a telegram, of which the following is a copy: “June 29th, 1895. To Western Twine Company, Chicago, 111: Do not ship twine unless guarantied. Answer at Rowena. F. R. Wright.” As a part of the transaction, the following was offered and received
This court has held that ‘ ‘a letter received by due course of mail from a party, in reply to a letter addressed to such
There being in this instance sufficient preliminary proof as a foundation for the introduction of a copy, we treat the telegram under consideration as such, without determining whether it is the original, as maintained by counsel for respondent. In our opinion, all that took place between the parties pertaining to the warranty relied upon was shown by the best evidence that could, under the circumstances, be obtained, and we decline to follow courts that seem to take a different view,
Another position taken by appellant is that there is nothing to indicate that the twine was warranted to consumers, and consequently it was error to allow a farmer who had purchased some of it from respondent F. R. Wright, and had paid for same, to testify to the effect that he was delayed in the harvest by having to stop the''machine frequently on account of the breaking of twine; that grain enough shelled out to seed the ground because so many of the bundles had to be rebound by hand, and that the twine was absolutely worthless. It clearly appears from the undisputed testimony of numerous witnesses, who had tried the twine, that it was of poor quality, varying from much too large in size to five or six strands, causing it to break frequently, and making it impossible to adjust tb'e tension so that more than three fourths of the grain could be bound, and requiring frequent stops for the purpose of pulling snarled twine out of the machine and rethreading the needle. For the purpose of proving that the note in suit was without consideration, every witness sworn at the trial stated that the twine in settlement for which it was given was of no value, and, there being no claim for injury to farmers, the foregoing was admitted to properly show their source of knowledge, and the
The record discloses that F. R. Wright is the principal maker of the note, and that the two other respondents signed as sureties. The principal and sureties answered separately, and at the conclusion of the trial two general verdicts against appellant, one in favor of F. R. Wright, and one in favor of the sureties, were returned into court, and separate judgments were accordingly entered. Of this appellant complains, although no injury thereby is intimated. Since respondents might-have-been sued severally, the practice adopted by the court is allowable. Bank v. Smith (Minn.) 59 N. W. 311; 11 Enc. Pl. &