Barnard & Leas Manuf'g Co. v. Galloway

• Decision Date: 03 April 1894
• Citation: 5 S.D. 205,58 N.W. 565
• Parties: BARNARD & LEAS MANUFACTURING COMPANY, Plaintiff and respondent, v. GEORGE A. GALLOWAY, Mrs. George A. Galloway, Dell Rapids Roller Mill Company, M. R. Kenefick, and Lisbon Savings Bank & Trust Company Defendants and appellants.
• Court: South Dakota Supreme Court

5 S.D. 205, 58 N.W. 565 (1894)

BARNARD & LEAS MANUFACTURING COMPANY,

Plaintiff and respondent,

v.GEORGE A. GALLOWAY,

Mrs. George A. Galloway, Dell Rapids Roller Mill Company, M. R. Kenefick, and Lisbon Savings Bank & Trust Company

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, S.D.

Hon. Frank R. Aikens, Judge

Affirmed

Henry Robertson, Winsor & Kittredge, Sioux Falls, S.D.

Attorneys for appellants.

Bailey & Voorhees, Sioux Falls, S.D.

T. Moultrie Mordecai, of Counsel

Attorneys for respondent.

Opinion filed April 3, 1894

FULLER, J.

The complaint, in stating a cause of action in the usual form for the foreclosure of a mechanic’s lien for $3,616.97, as the balance due on a contract made and entered into on the 18th day of April, 1889, by and between the plaintiff and the defendant George A. Galloway for material furnished and labor performed, of the aggregate value of $6,412.70, to be used in and about the erection and construction of a certain roller mill situated on lots 5, 6, 7 and 8, in block 3, in the city of Dell Rapids, Minnehaha County, S. D., of which the said George Galloway was the owner on the 17th day of April, 1889, and on the 12th day of September of that year, further alleges in substance, and among other things, that said defendant, on said last mentioned date, transferred said property, subject to the liens thereon, to the defendant, the Dell Rapids Roller Mill Company, and that all of said land and premises is used and required for the convenient use and occupation of the building known as the “Roller Mill.” Plaintiff alleges a full compliance with the terms of the contract, and that in pursuance thereof it performed and furnished, at the request of the defendant George A. Galloway, on the 3d day of June, 1889, certain extra and additional labor and materials in and about the erection and construction of said mill, which were of the value of $835.88; and that the whole amount of labor performed and material furnished amounted to the sum of $7,248.58; and that over and above all credits there was due the plaintiff, at the time of filing its lien, on the 18th day of December, 1889, $3,616.97; and that subsequent to such filing a payment of $1,000 has been made upon said account; that the defendants the Dell Rapids Roller Mill Company, Mrs. George A. Galloway, M. R. Kenefick, and the Lisbon Savings Bank & Trust Company have, or claim to have, some interest in, or lien upon the premises, which is subsequent and inferior to plaintiff’s lien. The demand for judgment is in the usual form.

The defendant, George A. Galloway, in his separate answer, after admitting certain allegations of the complaint, including the execution of the contract and the transfer of the mill to the Dell Rapids Roller Mill Company, alleges, in substance, that said stipulated sum of $6,412.70 was to be paid in the following manner, namely, $1,300 cash on closing contract, $1,300 cash to millwright as the work progressed, and that when the mill had fulfilled the contract for six consecutive days it was agreed that defendant should execute and deliver to plaintiff a note for $840.68 due in 6 months, $840.68 due in 12 months, $840.68 in 15 months, and $840.68 in 18 months, with 7 per cent interest, and all bearing even date with shipment of machinery, and to be secured by a first mortgage; that plaintiff guarantied the quality of the machinery furnished, and that the same, when properly set up, connected and operated, would be capable of producing as good results as any other equivalent line of machinery on the same kind or quality of wheat, and a capacity of 75 barrels in 24 hours; that said machinery was not of the quality guarantied, and was not perfectly set up, connected and put in running order, and had not a capacity of 75 barrels in 24 hours, but, on the contrary said machinery was defective and improperly set up and connected, and said mill produced flour of an inferior quality from the best of wheat, and had a capacity of not over 55 barrels in 24 hours. Paragraph 3 of said answer is as follows:

“(3) That in or about the month of September, 1889, it was agreed by and between plaintiff, the Dell Rapids Roller Mill Company, and this defendant that the said the Dell Rapids Roller Mill Company be substituted for this defendant in said contract, and have and assume all his rights and liabilities thereunder; that this defendant be freed from said rights and liabilities, and that plaintiff accept the Dell Rapids Roller Mill Company in the place and stead of this defendant as a party to said contract.”

The

separate answer of the Dell Rapids Roller Mill Company, in other respects similar to the above, contains a counterclaim for damages; but, as we view the case, it is not essential to a determination of this appeal, and therefore will not be produced. Upon the issues tendered by the pleadings, the cause was tried to the court without a jury. As matter of fact the court found in effect, that all the allegations of the complaint were true; that the defendants George A. Galloway and the Dell Rapids Roller Mill Company accepted said roller mill on the 18th day of December, 1889, and have ever since remained in possession of and have operated the same; that no agreement was made by plaintiff substituting the defendant the Dell Rapids Roller Mill Company in place of the defendant George A. Galloway; that the plaintiff has not accepted collateral security for the amount due upon the contract with defendant; that on or about the 18th day of January, 1890, with the knowledge and consent of the defendant the Dell Rapids Roller Mill Company, plaintiff and defendant George A. Galloway made a settlement and fully adjusted the amount due the plaintiff upon said contract; and that there is now due the plaintiff, on account of said contract, $3,038.31. Among the conclusions of law based upon the findings of fact, the court found the following:

“That plaintiff is entitled to a deficiency judgment against the defendant George A. Galloway in case said roller mill, and the premises upon which the same is situated, shall be sold for less than the amount found due upon plaintiff’s lien thereon.”

Judgment in the usual form was entered accordingly, and from such judgment defendants appeal.

In their notice of intention to move for a new trial, made after the entry of judgment, counsel for defendants, as a statutory ground of the motion, designated

“errors in law occurring at the trial, and excepted to by the defendants, which are fully stated in said bill of exceptions, and errors of the court in making the findings of fact hi said action, and excepted to by the said defendants separately, as follows:

That the court erred in making the third finding of fact.”

In like manner the making of each and every essential finding of fact is...