Sioux Banking Co. v. Kendall
| Decision Date | 23 February 1895 |
| Citation | 62 N.W. 377,6 S.D. 543 |
| Parties | SIOUX BANKING CO. v. KENDALL et al. |
| Court | South Dakota Supreme Court |
1. The direction of a verdict upon the evidence, if erroneous, is an “error of law occurring at the trial.”
2. To make false representations legally available, they must not only have been believed, but they must have been acted upon, and formed, at least in part, the inducement for the action resulting in damage.
3. C. testified that in making a trade he believed the statements of B., who represented the defendants. Held, that this alone was not sufficient to show that such statement induced the belief or influenced the trade, as he might have believed the statement on the sole ground that it was consistent with what he had already concluded from other information, independent of such statement.
Appeal from circuit court, Miner county; D. Haney, Judge.
Action by Sioux Banking Company against Kendall & Mills and John Benn. Judgment for defendants, and plaintiff appeals. Affirmed.D. C. & W. R. Thomas, for appellant. C. A. Crissey, L. J. Martin, and A. E. Chamberlain, for respondents.
This is an appeal from a judgment and an order denying a new trial. The case was tried to a jury, and a verdict for defendants directed by the court. Among the errors assigned is the insufficiency of the evidence to justify the verdict. It is probable, as urged by respondents, that this assignment is not sufficiently supplemented with the specification of the particulars in which the evidence is claimed to be insufficient to justify this court in examining the question as one of fact; but, the trial court having disposed of the case as one of law, the question here is not whether the verdict is sustainable as a conclusion of fact, but whether the court was right in treating the case as presenting no question of fact, and so deciding it as a question of law. Mercantile Co. v. Faris (S. D.) 60 N. W. 403. The direction by the court of a verdict for defendants, if error at all, was error at law, and was properly and sufficiently specifled as such in the statement upon which the motion for new trial was made. Donahue v. Gallavan, 43 Cal. 573. The question before us, then, is, does the abstract present evidence which, if believed by the jury, would permit a verdict for the plaintiff? We say “permit,” for if the evidence was such that the jury might have found for the plaintiff, the case should not have been taken away from them, and decided as a question of law. Plaintiff's cause of action, as stated in its complaint, was that defendants, conspiring together, fraudulently induced the plaintiff to transfer to them a valuable horse, of the value of $700, for $100 in money and two promissory notes amounting to $525, against a third party which notes the defendants fraudulently represented to be good and collectible; that the maker of the notes was solvent, and able to pay, and that the notes were secured by ample chattel mortgage security,-all of which was false, but was believed and relied upon by plaintiff; that upon discovery of the fraud plaintiff offered to return the money and the notes, and demanded the horse, which defendants refused. Benn did not answer. The answer of the other defendants was a general denial. There is nothing in the case to indicate upon what particular ground, if any, the verdict was asked or directed. Upon the theory of the complaint and the theory of the trial it was incumbent on plaintiff to show that Benn, who conducted the negotiation with plaintiff, was the authorized agent of defendants Kendall & Mills; that the representations were made and relied upon by plaintiff, and induced the trade; and that they were false. In their brief, respondents justify the ruling of the court on the ground that there is no evidence showing that plaintiff made the trade on the strength of Benn's representations. The only evidence we can find on this point is that of Church, who represented plaintiff in making the trade. He says: “The way I came to make this exchange was that I believed what Mr. Benn was telling me, and considered the consideration sufficient,...
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