152 N.W. 508 | S.D. | 1915
Plaintiff -brought an action in the municipal court of the city of Aberdeen, Brown county, alleging that on the 10th day of May, 1913, defendant gave an order to Edward C. Plume 'Company, a corporation of Chicago, 111. for an advertising service, consisting of 12,000 Panama Canal folders, and agreed to pay therefor, when furnished by said company, the sum of $180; that on September 29, 1913, said company furnished and delivered to defendant folders according to said order; that on the 5th day of December the Edward ;C. Plume Company, for value received, sold, assigned, and transferred to the plaintiff its claim and demand for said $180. Defendant, in addition to a general denial, specifically denies that it ever executed an order to said company on the 10th day of May, 1913, as alleged.
The cause was tried by the court without a jury. Findings of fact, -conclusions of law, and judgment were for the plaintiff. This appeal is from the judgment and from an order overruling-defendant’s motion for a new trial.
At the trial plaintiff offered in evidence various copies of letters identified by one of its witnesses, purporting to have been written by the Edward C. Plume Company to the defendant, together with certain, letters purporting to have 'been written by the defendant to the Edward C. Plume Company, relating to the transaction in suit. Among the copies of letters were letters dated July 25, 1913, August 20, 1913, September 4, 1913, October 18, 1913, all of which were objected to- as incompetent and immaterial, self-serving declarations, and because no proper foundation 'had- been laid. There was no evidence that the original letters -had ever been properly inclosed, addressed, stamped, or deposited in a United States post office. Objections were overruled, and these rulings are assigned as error.
FOowever wise and expedient it might be to require appellant to present to the trial court for review, upon a motion for a new trial, every error alleged to have been committed by the trial court, before permitting an appeal to this court, we find nothing in the statute which requires it to be done, and rulings upon the
We are convinced that the erroneous rulings upon this evidence must have -been and were prejudicial, and that the order and judgment of the trial court should be reversed.