Moline Plow Co. v. Gilbert

• Decision Date: 01 January 1883
• Citation: 15 N.W. 1,3 Dak. 239
• Parties: Moline Plow Co. v. Gilbert and others.
• Court: South Dakota Supreme Court

15 N.W. 1

3 Dak. 239

Moline Plow Co.

v.Gilbert and others.^a1

Supreme Court of the Territory of Dakota.

Filed ____________, 1883.

Appeal from the district court of the county of Minnehaha.Winson & Sweezy, for appellants. Grigsby & Wilkes, for respondent.

KIDDER, J.

This action was brought upon a letter of guaranty, which was as follows:

“Sioux Falls, D. T., March 9, 1878.

“ Moline Plow Co., Moline, Illinois-Sirs: We, the undersigned, are acquainted with Peter Gilman, of this place, (formerly of Fond du Lac, Wis.,) and have no hesitation in indorsing him as an honest, capable business man, and deserving of confidence and credit. We think your informant in regard to Mr. Gilman's business ability and capacity was in error, if not selfish and malicious. We will satisfy all orders Mr. Gilman gives this spring, such as plows and cultivators.

Wm. Dick,

“H. Gilbert,

“Jacob Schaslzel, Jr.”

Mr. Dick, having deceased, was not made a party. Peter Gilman took this guaranty and inclosed it to the plaintiff in his letter, which reads:

“Sioux Falls, D. T., March 9, 1878.

“ Moline Plow Co., Moline, Illinois: Will you accept my order under the recommend inclosed? If so, ship me the breakers as ordered, also the cultivators, and about six vibrating harrows. *** I am sorry about such a report as stated to you, but still I will try and satisfy you, and I know you will think so much the more of me.

I remain yours,

Peter Gilman.

“If you accept my order please ship the goods at once, and oblige P. G.”

Thereafter, during the spring of 1878, Gilman gave to the plaintiff four other orders for plows and cultivators, which the plaintiff filled by selling and delivering the same to him at Moline, Illinois, to the amount of $1,051.05, upon which there was paid $50.53; the balance is what was sought to recover previous; to all of which Gilman sent an order to the plaintiffs, which is as follows:

“Sioux Falls, D. T., January 21, 1878.

“ Moline Plow Company, Moline, Illinois: I hereby order of you the plows and other goods in your price-list hereto annexed, to be delivered on board cars at Moline, Illinois, marked Peter Gilman, at prices and terms of warranty annexed, for which I agree to pay you one-half September 15, 1878, and January 1, 1879, with interest at 10 per cent. from maturity, payable at Sioux Falls Bank, Sioux Falls, D. T., exchange or express charges prepaid, account to be settled monthly by note payable as above. ***

All other goods ordered during the season will be on the same terms, and are to be paid for in the same manner. ***

Discount from this list 30 per cent. Ship on or about March 1, 1878, via cheapest route.

Peter Gilman, M. P. Co,

“Per P. C. Fowler.”

This order, (here follows schedule of prices,) after looking up the commercial standing of Mr. Gilman, the plaintiff declined to fill unless Gilman could furnish good security; and this was communicated to Mr. Gilman before March 9th. And there was testimony introduced on the trial below, as the record shows, which tended to prove that said order was “canceled, and laid away as dead paper,” when the guaranty was received, and there was also testimony which tended to show that it was in esse at that time, and that said goods were sold and delivered upon it.

On the twenty-eighth of July, 1878, the agent of the plaintiff-without the knowledge or consent of the defendants, or either of them-settled the balance of said account by taking two notes, payable to the plaintiff,-one for the sum of $550.53, in the exchange New York or express charges, and interest from date at the rate of 10 per cent. annually until paid, payable the fifteenth day of September, and executed by Peter Gilman and William B. Dick; the other payable the fifteenth of November, 1878, for the sum of $450, (otherwise the same as above;) also, there was a settlement of same date signed by Gilman & Fowler, the agents of the plaintiff, as follows:

“Settlement with Peter Gilman, Sioux Falls, Dakota, date July 28, 1878. Account M. P. Co. Invoice May 20, 1878, $1,051.05.

+-------------------------------------+
                ¦Bills rec., date July 28, '78¦Cr.    ¦
                +-----------------------------+-------¦
                ¦Due Sept. 15, '78,           ¦$550 53¦
                +-----------------------------+-------¦
                ¦Due Nov. 15, '78,            ¦450 00 ¦
                +-----------------------------+-------¦
                ¦Cash to balance,             ¦50 52  ¦
                +-----------------------------+-------¦
                ¦Retained,                    ¦$50 52 ¦
                +-------------------------------------+
                

“Peter Gilman,

“Moline Plow Co.

“Per P. C. Fowler.”

There seems to have been no objection to the complaint, which counted on the letter of guaranty and the sale and delivery of the goods to Gilman. The defendants in their answer admit only the writing and sending of the letter, and deny each and every other allegation of the complaint. The answer also sets up that by the agreement under which the goods were purchased, certain terms of credit and payment were agreed upon, and that subsequently, without their knowledge, these terms were by the principal parties materially altered, whereby they were exonerated.

The first assignment of error was the admitting in evidence upon the trial the letter-press copy of the plaintiff's letter of March 14, 1878, which is as follows:

“ Peter Gilman, Esq., Sioux Falls, Dakota: Yours of the 9th is at hand and satisfactory. We will ship your goods in a day or so and hope they will arrive promptly.

Lobdell.”

It appears that no foundation was laid for its introduction, and it was objected to upon that ground.

The objection was well taken, if the investigation stops here; but this letter was written in reply to Gilman's letter of March 9th, in which he incloses the defendant's letter of guaranty of the same date, and inquires: “Will you accept my order under the order inclosed? If so, ship me the breakers as ordered, and also the cultivators,” etc. This letter of Gilman's did not need a reply; the contract between the parties was consummated upon the shipping of the goods. He did not say, “If you accept my order, write me.” It was entirely immaterial whether the plaintiff replied to the letter or not. The goods were shipped in response to the letter, and the plaintiff would have been entitled to recover just the same as if no reply had been sent him. We are unable to comprehend in what respect the admission of the copy could affect the recovery or be an injury to the defendants.

In the celebrated divorce case, Forrest v. Forrest, 25 N. Y. 501, the learned judge who delivered the opinion of the court said: “It was insisted that the same principles upon which a court of law formerly proceeded in granting or refusing a new trial should be applied to the case; and if evidence had been rejected on the trial of the issues that ought to have been received, or evidence rescinded that should have been rejected, the defendant was entitled to a new trial. This is hardly the rule now in a court of law, for latterly even these courts undertake to judge for themselves of the materiality of the evidence found to have been improperly admitted or rejected, and when satisfied that no injustice has been done, and that the verdict would have been the same with or without such evidence, they have refused a new trial.” He cited Doe v. Tyler, 6 Bing. 561, and other cases, and went on to say: “Courts of equity have, however, been governed by very different principles from those of a court of law in granting or refusing new trials of issues of fact. Though evidence has been improperly admitted or rejected, if a court of equity was satisfied that the verdict ought not to have been different, it would not grant a new trial merely on such ground.” He cited Barker v. Ray, 2 Russ. 63, and other cases.

A rule is laid down in 3 Wait, Pr. 420, sustained by numerous authorities, which we consider as settled, viz., “that whether the error complained of was the admission of improper testimony, or the rejection of that which was proper, another trial will not be ordered unless the court, taking the whole of the evidence together and connecting it with the judge's charge, thinks that injustice has been done by the error committed.” This is extending the rule further than we are asked to do in the case at bar.

2. Was there error in the ruling out of a portion of the deposition of Charles W. Lobdell? The deposition was taken by the plaintiff to be and was used by him on a former trial of this case, and Lobdell was in court and was a witness, and had testified on the part of the plaintiff in the trial of the case. The defendant offered interogatory 11 of said deposition, and the witnesses answer thereto, which were as follows: “ Interogatory 11. Was there any agreement between the plaintiff and Gilman, or between the plaintiff and defendants, that the time mentioned for payment in the order of January 21, 1878, should govern for any and all sales made during the spring of 1878, under the defendants' letter of guaranty? If so, state regarding it. Answer. As I understood it, the terms for the season were stated in the original order, Exhibit A, and the guaranty was for the same time.” (Objected to because the answer was not responsive to the question.)

If this question had been put to a witness upon the stand, and he had answered it in the same manner, it would have at once been stricken out by the court on motion.

It is a well-settled doctrine that a witness cannot testify as to his understanding of a matter, and it is clear that the answer is not responsive to the question. Although under this objection the court ruled correctly, yet the proper objection would have been that the witness is here in court and therefore the deposition is not admissible. Then it could not have been used only to impeach the witness after the proper foundation had been laid. “The deposition of any witness may be used only in the following cases: (1) When the witness does not reside in the county where the action or proceeding...