Collison v. Davis

• Decision Date: 13 March 1916
• Docket Number: 3842.
• Citation: 156 N.W. 786,37 S.D. 107
• Parties: COLLISON v. DAVIS et al.
• Court: South Dakota Supreme Court

156 N.W. 786

37 S.D. 107

COLLISON v. DAVIS et al.

No. 3842.

Supreme Court of South Dakota

March 13, 1916

Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.

Action by Chris Collison against William J. Davis and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded for new trial.

Gardner & Churchill, of Huron, for appellants.

A. W Wilmarth, of Huron, for respondent.

SMITH J.

Action for damages for non-delivery of 40 head of steers contracted to be purchased by plaintiff from defendants July 20, 1912, on which date plaintiff delivered to defendants in part payment a check for $200. On the back of the check were written the words: "Payment on 40 steers from 60 head, delivered in Woolsey, between 1st of October and 1st of November, at $5.40 pr. D." It is conceded that "$5.40 pr. D" means $5.40 per hundredweight. Plaintiff called for and demanded delivery of the steers on October 13th, at which time he was informed that defendants had sold the entire bunch on October 9th. It is conceded that the cattle were to be delivered to plaintiff at some time between October 1st and November 1st; the precise issue being whether under the contract of sale the plaintiff or defendants had the right to fix the day of delivery within the dates named. Plaintiff contends that he purchased the cattle for delivery between October 1st and November 1st, and that under an existing custom and usage among dealers in this state, and in the locality where this purchase was made, where cattle are sold or purchased to be delivered between two dates, the buyer has the right to fix the particular time of delivery between such dates.

It was shown by practically undisputed evidence that such a custom exists in the cattle trade, except where by the particular contract of purchase and sale the seller reserves the right to fix the date of delivery. It was the contention of defendants that at the time the contract of purchase and sale was entered into they expressly reserved the right to deliver the cattle at any time between October 1st and November 1st and that they tendered delivery within the dates named, and before disposing of the cattle to other parties. Plaintiff conceded the tender; his only contention being that the right to fix the date of delivery was not reserved to defendants in the contract of sale, and that under the existing custom he was not required to accept delivery at the time it was tendered. The only disputed question of fact therefore was as to the terms of the contract of sale. The check with the written indorsement referred to was offered and received in evidence. Defendants conceded liability for the $200 paid on the purchase price. Appellants assign as error the following instruction by the trial court:

"There is in evidence a check marked 'Exhibit 1.' On the back of this certain writing has been done which was proved by the plaintiff was upon the instrument when it was delivered. If this check was accepted by the defendant with this upon it, they are bound by this as a part of the agreement."

Appellant excepted to this instruction on the ground that:

It "points out a particular part of the evidence in the case, gives undue prominence thereto, and charges the jury that, if defendant accepted the said check with the writing indorsed thereon, they are bound by said writing notwithstanding the fact that such writing is ambiguous, uncertain, and not controlling in the case."

Appellant also urges that this instruction was misleading and prejudicial in that it ignored the real issue of fact arising upon the oral evidence, which disclosed the actual terms and conditions of the contract. It is not contended by either party that the writing on the check constituted a complete written contract. On the contrary, oral evidence as to the terms and conditions of the sale was offered by both parties and received without objection. There was a direct conflict in this evidence. The defendants' evidence was to the effect that in the oral contract of sale they expressly reserved the right to deliver the cattle at any time between October 1st and November 1st, the reservation of which right they allege, had to do with the maturing of their growing corn crop, which was uncertain at the time of the sale, in July. Plaintiff admits a conversation as to this corn crop at the time of the...