Starcher v. Thompson

• Decision Date: 12 April 1915
• Docket Number: No. 3628.,3628.
• Citation: 152 N.W. 99,35 S.D. 311
• Parties: STARCHER v. THOMPSON.
• Court: South Dakota Supreme Court

35 S.D. 311

152 N.W. 99

STARCHER

v.THOMPSON.

No. 3628.

Supreme Court of South Dakota.

April 12, 1915.

Appeal from Gregory County Court; Charles A. Davis, Judge.

Action by Edwin M. Starcher against T. J. Thompson. From a judgment for defendant, plaintiff appeals. Affirmed.Edwin M. Starcher, of Gregory, for appellant.

W. J. Hooper, of Gregory, for respondent.

SMITH, J.

Appeal from a judgment entered on a directed verdict. The complaint alleges that Charles A. Thompson was the son and authorized agent of the defendant, T. J. Thompson, who was conducting a hardware business at Fairfax; that the son in October, 1910, requested the plaintiff to order in the name of T. J. Thompson, his father, two motorcycles, one for plaintiff and one for the son, and requested plaintiff to advance the price therefor, which plaintiff did; that two motorcycles were shipped to T. J. Thompson, one of which was received by plaintiff, and the other by the son; that T. J. Thompson expressly agreed to pay plaintiff for the motorcycle received by the son. The answer is a general denial.

At the trial plaintiff called the son, Charles, as a witness, who testified, in substance, that his father was in the hardware business at Fairfax; that in October, 1910, the plaintiff asked the witness to find out what he could get a couple of motorcycles for, and said, “You want one, too, don't you?” to which the witness assented; that witness got a list of secondhand machines, and the plaintiff got some too, and they looked them over; that the witness had letters, written by the American Motorcycle Company to his father, giving agent's prices, which were in reply to letters written by the witness at plaintiff's suggestion; that the witness slipped into the store after night, and got stationery on which to write the letters; that the witness followed plaintiff's instructions; that the motorcycles were not ordered by the witness' father; that when the machines came the witness got a drayman to haul them to Doane's lumber yard; that this was done pursuant to the plaintiff's instructions; that the drayman who hauled them was not his father's drayman; that neither of the motorcycles ever went to the father's place of business; that one of the machines might have been brought to the store a year or so afterwards; that they did not get the machines from his father's warehouse, but that they were placed in Johnson's garage; that the witness sold his motorcycle some time later; did not give the money to his father, but kept it himself; that the witness was not working in his father's store, and did not transact any business for his father during 1910. Mr. Edens, the station agent, plaintiff's witness, testified that he had a conversation with T. J. Thompson relative to the motorcycles; that Mr. Thompson asked the witness whom the motorcycles were shipped to, who got them, and who paid for them, and said that, if there were any charges, he would not pay a cent of it. The witness told him the charges were paid by Mr. Starcher, the plaintiff.

The defendant, T. J. Thompson, called as a witness by plaintiff, testified that he was the father of Charles A. Thompson; that he was engaged in the hardware and furniture business at Fairfax; that he had a conversation with Mr. Starcher about a year after the...