J. H. Larson Elec. Co. v. Vander Vorste, 10054

• Court: Supreme Court of South Dakota
• Writing for the Court: ROBERTS; BIEGELMEIER; HANSON, J., concurs with BIEGELMEIER
• Citation: 134 N.W.2d 500,81 S.D. 296
• Parties: J. H. LARSON ELECTRICAL COMPANY, a Corporation, Plaintiff and Respondent, v. R. W. VANDER VORSTE, d/b/a Community Electric Company, and New Amsterdam Casualty Company, Defendants and Appellants.
• Docket Number: No. 10054,10054
• Decision Date: 19 April 1965

Page 500

134 N.W.2d 500 81 S.D. 296 J. H. LARSON ELECTRICAL COMPANY, a Corporation, Plaintiff
and Respondent,
v.
R. W. VANDER VORSTE, d/b/a Community Electric Company, and
New Amsterdam Casualty Company, Defendants and
Appellants. No. 10054. Supreme Court of South Dakota. April 19, 1965.

Page 501

[81 S.D. 298] Virgil E. Vail and Davenport, Evans, Hurwitz & Smith, Lyle J. Wirt, Sioux Falls, for defendants and appellants.

Austin, Hinderaker & Hackett, Watertown, for plaintiff and respondent.

ROBERTS, Presiding Judge.

The defendant R. W. Vander Vorste, doing business under the name of Community Electric Company of De Smet, South Dakota, entered into a contract with the town of Akron, Iowa, for improvements and extensions to the town's electric light plant. The contractor, as principal, and defendant New Amsterdam Casualty Company, as surety, furnished a bond conditioned on performance of the contract and payment of all just claims as they become due for work performed and materials furnished in connection with the contract.

The complaint alleges that plaintiff furnished to defendant contractor electrical materials of the reasonable value of $8,404.80 which were used in the prosecution of the work provided for in the contract with the town of Akron and that there is an unpaid balance of $6,897.68.

Defendants answered admitting that plaintiff did furnish electrical materials, but denied that there is an unpaid balance and by counterclaim sought recovery in damages resulting from the sale and delivery of various items of electrical supplies and materials including 40 electrical transformers to be used in other installation work; that the electrical transformers were delivered at various project sites; that deliveries were made later than had been agreed upon between the parties; and that the transformers were of the wrong voltage and defective and not in conformity to plans and specifications. Plaintiff's reply denied all allegations in the answer inconsistent with those alleged in the complaint. With issues thus joined, trial was by a jury. The court instructed the jury that plaintiff was entitled to recover judgment against defendants in the amount of $6,276.93 and that the only issues for their determination were those presented by defendants' counterclaim. The jury answering special interrogatories assessed as damages (1) $1,455.47 which was the difference[81 S.D. 299] between the cost of the wrong-voltage transformers and the amount received from their sale, (2) $13,544.53 attributable to the furnishing of wrong-voltage transformers and (3) $3,952.78 attributable to the furnishing of defective transformers. The total amount of damages thus assessed was $18,952.78. The court entered judgment in favor of defendants Vander Vorste and surety and against plaintiff for $14,300.17 based upon the special verdict, less the amount of $6,276.93, together with interest and costs.

After hearing plaintiff's application for new trial, the court ordered that plaintiff be granted a new trial 'unless the Defendants * * * shall file in the office of the Clerk of the above entitled Court * * * their written consent or consents to the reduction of the judgment entered in the above entitled matter by the sum of $10,319.58 so as to reduce the principal amount of the judgment, exclusive of costs, to $3,845.04 * * *.' Defendants did not consent

Page 502

to the reduction as a condition to letting the verdict stand for the remaining amount. The appeal is from this order.

The court when granting a new trial must specify each and every ground therefor. SDC 1960 Supp. 33.1611. The causes for a new trial include: '(1) Irregularity in the proceedings of the Court, jury, or adverse party or any order of the Court or abuse of discretion by which either party was prevented from having a fair trial; * * * (3) Accident or surprise which ordinary prudence could not have guarded against; (4) Newly discovered evidence, material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial; * * * (6) Insufficiency of the evidence to justify the verdict or other decision or that it is against law; * * *.' SDC 1960 Supp. 33.1605. These are the grounds on which the order is based.

It appears from the evidence that defendant Vander Vorste entered into a contract dated December 10, 1958, with Brezina Construction Company, Rapid City, South Dakota, to install transformers and other electrical equipment to service dwellings for the United States Air Force at Minot and Dickinson, North [81 S.D. 300] Dakota, and Havre and Lewistown, Montana. Vander Vorste also entered into a contract on February 5, 1959, with Bob Eldridge Construction Company, Kansas City, Kansas, to do similar work and furnish materials including transformers to service dwellings for the United States Air Force at Osceola, Wisconsin, and at Baudette and Willmar, Minnesota. In the month of March, 1959, Vander Vorste obtained prices from United Electric Supply Company, Sioux Falls, South Dakota, and other suppliers for electrical transformers. Charles Pahl, manager for plaintiff company, called at the place of business of Vander Vorste in De Smet, South Dakota, to obtain information as to material requirements for the Air Force housing projects. It is admitted that Pahl examined the bid which United Electric Supply Company had submitted to Vander Vorste. It was from this bid that Pahl copied information as to the number of transformers and voltage. The bid of United Electric Supply Company listed wrong voltage for 22 of the 40 transformers included in its bid. Plaintiff insists that the erroneous information was furnished by Vander Vorste, but the jury...