Kelly v. Pierce

• Decision Date: 18 July 1907
• Citation: 112 N.W. 995,16 N.D. 234
• Parties: KELLY et al. v. PIERCE et al.
• Court: North Dakota Supreme Court

16 N.D. 234

112 N.W. 995

KELLY et al.

v.PIERCE et al.

Supreme Court of North Dakota.

July 18, 1907.

Syllabus by the Court.

Errors in giving instructions must be affirmatively shown by the abstract, and the court will not explore the record to substantiate assignments of error.

Errors assigned in the brief, but not argued, will be deemed abandoned.

A vendee, who refuses to perform his agreement to execute notes for the purchase price of personal property sold and delivered to him, may be sued by the vendor for damages for breach of the contract immediately upon the refusal to deliver the notes, and the measure of damages will be the contract price.

A partner has no power, as such alone, to sell the good will of the partnership business.

Submitting the measure of damages to a jury on a wrong theory is error without prejudice, where the result attained is the same as would necessarily have followed, had the question not been submitted to the jury at all.

Appeal from District Court, Cavalier County; W. J. Kneeshaw, Judge.

Action by M. Kelly and James McLaughlin, copartners as Kelly & McLaughlin, against T. E. Pierce and L. C. Champine, copartners as Pierce & Champine. Judgment for plaintiffs. Defendants appeal. Affirmed.Cleary & McLean, for appellants. Gordon & McIntyre, for respondents.

MORGAN, C. J.

The plaintiffs sold and delivered to the defendants some horses, buggies, and other personal property used in the running of a livery barn in the city of Langdon for the agreed price of $1,550. The terms of the sale were that the defendants were to execute to the plaintiffs two promissory notes, each for the sum of $775, one due on or before one year from the date of the sale, June 16, 1904, and the other due two years from the date of sale, each to bear interest at the rate of 8 per cent. per annum. All of the property embraced in the sale was delivered to the defendants immediately after the terms of the sale were agreed upon. The defendants refused to execute and deliver the notes as agreed. The plaintiffs bring this action for damages for their refusal to comply with the terms of the sale by executing and delivering to the plaintiffs the notes, and demand a recovery of judgment against the defendants for the sum of $1,550, with interest from the date of sale. Said sum is sought to be recovered as damages growing out of the breach of contract. The defendants answer, and admit their refusal to execute and deliver the notes, and further allege that their refusal was based upon the fact that the plaintiffs had failed to comply with the terms of the contract. It is alleged in the answer that when the sale was made, and as a part of the consideration thereof, the plaintiffs agreed to cease doing any livery business and any feed business in Langdon, and further agreed to make, execute, and deliver to the defendants their undertaking that they would comply with the agreement to cease doing any livery or feed business. A jury was impaneled and testimony taken, and at the close of the taking of the testimony the plaintiffs made a motion for a directed verdict, which was denied. Thereupon the plaintiffs asked leave to reopen the case for the taking of further testimony. This motion was objected to by the defendants, and the objection overruled, and the defendants excepted to such ruling. Further testimony was taken as to the value of the property delivered to the defendants pursuant to such sale, and at the close of the taking of such testimony the plaintiffs again moved for a directed verdict upon all of the issues raised by the pleadings except the single one of the value of the property delivered to the defendants. This motion was granted, and the issue as to the value of the property was submitted to the jury. A verdict was returned for the sum of $1,550, and judgment was rendered pursuant to such verdict. After the jury brought in its verdict the defendants moved for judgment notwithstanding the verdict, or for a new trial in case such motion was denied, and there was no ruling upon the motion for judgment notwithstanding the verdict. A motion for a new trial was subsequently made and denied. Judgment was rendered upon the verdict, and the defendants have appealed from the judgment. The assignments of error relate principally to the refusal of the court to direct a verdict. There are other assignments which relate to the admission of testimony and the refusal to admit testimony, and there are also objections to the charge.

The objections to the charge will not be considered, as the charge is not set forth in the abstract; but the court is referred to the original record as to what the charge was. The charge, when excepted to, should be made a part of the abstract. The appellant, through his abstract, must affirmatively show that error was committed by the trial court, and the court will not ordinarily explore the record to substantiate an assignment of error. The error should affirmatively appear in the abstract. The objections to the charge will, therefore, not be considered. There are other assignments of error which are in the same situation; that is, they are not affirmatively shown by the abstract, and the court is asked to examine the original record to substantiate the assignments. All these assignments will be disregarded. The motion for a new trial is not contained in the abstract, and the grounds thereof do not appear outside of the record. There is no specification as to the particulars in which it is claimed that the verdict is not sustained by the evidence. For this reason it does not appear that it was error to deny the motion for a new trial, and,...