Behringer v. Muchow
| Decision Date | 12 December 1947 |
| Docket Number | 8937. |
| Citation | 30 N.W.2d 5,72 S.D. 80 |
| Parties | BEHRINGER v. MUCHOW. |
| Court | South Dakota Supreme Court |
Rehearing Denied Jan. 22, 1948.
John Carl Mundt, of Sioux Falls, for defendant-appellant.
Gene E. Pruitt, of Sioux Falls, for plaintiff-respondent.
Plaintiff brought suit to recover damages for breach of warranty. His complaint alleged the purchase of a boar pig from defendant and that defendant expressly warranted said boar for the purpose of breeding. The complaint pleads also the lack of performance by the boar and the resulting loss to plaintiff. The answer of defendant admitted the sale to plaintiff as pleaded but alleges that the services of the boar were guaranteed only if he would be used in pen breeding. The answer alleges further that it was also understood between the parties that should the animal prove unsatisfactory the plaintiff would be obliged to make complaint within 30 days and return the boar. The defendant pleaded also the failure of the plaintiff to pen breed his sows, the absence of any complaint by the latter on account of the boar's failure to function and the existence of a well established custom respecting the conditions under which boars are sold with warranty. It is noted that the conditional or qualified warranty claimed by defendant to have been established by custom is the same as that which defendant pleads as having been the express verbal understanding between him and plaintiff.
After receiving defendant's answer plaintiff applied to the court, without notice to defendant, and obtained leave to serve an amended complaint. The amended complaint omits the word 'expressly', descriptive of the alleged warranty on the part of defendant as pleaded in the original complaint, and adds averments of plaintiff's reliance upon the warranty and of notification to defendant that the boar had failed. Defendant's answer to the amended complaint, in addition to the matters pleaded in the answer to the original complaint, embraces a motion to dismiss the amended complaint for the reason that the same had been permitted upon an ex parte application. Said answer avers also the failure of plaintiff to carry out what defendant claims to have been the verbal understandings of the parties.
The issues thus presented were tried to the court without a jury and a decision and judgment in plaintiff's favor resulted. Thereafter defendant made a motion for a new trial predicated upon his claim of errors as reflected by the assignments of error, to which reference will hereinafter be made, and upon the ground of newly discovered evidence. The appeal is from the judgment and from an order denying the motion for a new trial. Numerous assignments of error bring here for review the rulings of the trial court denying defendant's motion to dismiss plaintiff's amended complaint, excluding offers of defendant to prove the existence of a custom as pleaded by defendant, adopting findings favorable to plaintiff upon the evidence submitted and denying the motion for a new trial. We review said rulings in the order stated.
As pointed out above, plaintiff's motion for leave to amend his complaint was presented to the court without notice to defendant. Although we think that plaintiff should have proceeded to a hearing upon said motion as provided by SDC 33.1001, we fail to find that defendant was prejudiced or that there was an abuse of discretion on the part of the trial court in allowing the amended complaint. In the absence of a showing of an abuse of discretion to the prejudice of the party appealing this court will not disturb the order of the trial court granting leave to amend. Van Abel v Wemmering, 33 S.D. 544, 146 N.W. 697; Union Investment Company v. Schonebaum et al., 42 S.D. 350, 175 N.W. 357. The amended complaint did not allege a new or different cause of action. The same but amplified the cause first stated and put defendant upon notice respecting the nature of the evidence upon which plaintiff intended to rely.
Defendant contends that he should have been allowed to show an established custom, consistent with what he claims to have been his understanding with the plaintiff, relative to the breeding of sows, under which custom plaintiff was obliged to pen breed or be left without recourse should the boar prove to be useless. In other words no warranty would accompany the sale of a boar to be used in herd breeding. Defendant testified fully with reference to the conversation had between him and plaintiff and sought to prove that it had been agreed between them that plaintiff should pen breed or take the boar without warranty. Having pleaded a specific understanding with the plaintiff and thereafter having testified in support of the agreement as pleaded we think that the trial court properly excluded offers of defendant to show what was or may have been a custom among boar dealers. A custom in accord with or different from the agreement of the parties would have no bearing upon nor affect the rights of either party to this transaction. Defendant gave his version of the agreement and understanding and, as related by him, the terms thereof specifically required plaintiff to do that which conformed...
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