McCabe v. Desnoyers

• Decision Date: 11 July 1906
• Citation: 108 N.W. 341,20 S.D. 581
• Parties: McCABE v. DESNOYERS et al. [*]
• Court: South Dakota Supreme Court

108 N.W. 341

20 S.D. 581

McCABE v. DESNOYERS et al. ^[*]

Supreme Court of South Dakota

July 11, 1906

Appeal from Circuit Court, Clark County.

Action by John R. McCabe against Henry Desnoyers and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Fuller P. J., dissenting.

S. A Keenan, for appellants.

Sterling & Clark, for respondent.

CORSON J.

This case is before us on an appeal from the judgment and order denying a new trial. The action, it is contended by the plaintiff and respondent, is one for fraudulent representations in the sale of a certain stallion made by the defendant to the plaintiff.

The appellant contends that the action is one for breach of warranty, and that as the defendants in their separate answers pleaded the six-year statute of limitations, and as more than six years had elapsed after the making of the contract and before the commencement of the action, the same was barred. It is contended by the respondents that the action was tried in the court below entirely upon the theory that the action was one for damages for fraudulent representations made by the defendants, and not discovered by the plaintiff until about five years after the representations were made; that the issue as to the statute of limitations was entirely ignored in the trial of the case and that the question was not presented to the court below either by motion, objection to testimony, or request for instructions to the jury; and that that question now cannot be raised for the first time in this court. We are inclined to take the view that the respondent is right in his contention, as it is nowhere disclosed by the record that this question was raised in any form at the trial in the court below, either by instructions requested of the court or on the motion for a new trial. Taking this view of the case that the action was one for fraudulent representations made by the defendants, it will not be necessary to discuss or decide the question as to the statute of limitations; the rule being well settled in this court that no questions not presented to the court below in some form at the trial and a ruling had thereon can be raised in this court. Parrish et al. v. Mahany et al., 12 S.D. 278, 81 N.W. 295, 76 Am. St. Rep. 594; Noyes v. Brace, 9 S. D. 603, 70 N.W. 846; Dowdle v. Cornue, 9 S. D. 126, 68 N.W 194; Gaines v. White, 2 S. D. 410, 50 N.W. 901.

The contention of the appellant that the court erred in admitting certain evidence given on the trial by the plaintiff, under the general objection that it was incompetent, irrelevant, and immaterial, cannot be considered by this court, as no specific objection was pointed out. This court has repeatedly held that a general objection is insufficient, and that this court will not review or consider such an objection unless it clearly appears that the objection could not have been obviated had the same been specifically pointed out. Caledonia Gold Min. Co. v. Moonan, 3 Dak. 189, 14 N.W. 426; Pitts Agr. Works v. Young, 6 S. D. 557, 62 N.W. 432; St. Croix Lumber Co. v. Pennington, 2 Dak. 467, 11 N.W. 497; State v. La Croix, 8 S. D. 369, 66 N.W. 944; Mathews v. Silvander, 14 S.D. 505, 85 N.W. 998.

It is further contended by appellants that there was misconduct of the jury, in that the verdict arrived at was a quotient verdict, and an affidavit of 10 of the jurors was presented to the trial court in support of this contention. An affidavit of 8 of the same jurors, however, was presented on the part of the respondent, correcting their former affidavit, and the trial court seems to have held that the evidence was insufficient to support the appellant's contention. We are unable to say from the affidavits presented that the decision of the trial court was not fully sustained by the same, and the decision of the trial court is therefore conclusive upon this court. This case is not ruled by the case of Long v. Collins, 12 S.D. 621, 82 N.W. 95, for the reason that in that case the evidence conclusively established the fact that the verdict was a quotient verdict, and made upon an agreement of 12 jurors to abide by the result of the addition and division of the sums set down by the respective jurors.

The appellant also contends that certain instructions given at the request of the respondent were erroneous, and did not correctly state the law applicable to the case, and that an instruction requested by the appellant and refused by the court should have been given. The instructions given at the request of the respondent and excepted to are as follows "(1) You are instructed that as a matter of law, when a seller of personal property gives a warranty or makes representations in respect to the kind or quality of the goods or chattels sold, that he is bound to know whether as a matter of fact his warranty or representations are true, and that, if a buyer buys from him upon the strength of such representations or warranty, he has a right to hold the seller responsible and accountable if such warranty fails or such representations are untrue. It is the duty of a person giving a warranty or making representations as to the kind or quality of goods sold to ascertain and know whether such warranty or representations are true or not. (2) You are instructed in this case that if you find from the evidence that the horse in question was purchased by plaintiff from the defendants under the warranty that he was a standard bred stallion of Clydesdale stock, or was represented by defendants to plaintiff to be of a standard and pure bred Clydesdale stock and entitled to...