Tootle v. Petrie
| Decision Date | 09 November 1895 |
| Citation | 8 S.D. 19,65 N.W. 43 |
| Parties | TOOTLE et al. v. PETRIE, Sheriff. |
| Court | South Dakota Supreme Court |
1. To be available in this court, errors of law occurring at the trial, and excepted to, must be particularly specified; and, when the appeal is taken only from an order overruling a motion for a new trial, errors that were neither urged nor presented in a statement or bill of exceptions at the hearing of said motion will not be reviewed.
2. Where clearly conflicting evidence concerning a material issue raised by the pleadings has been submitted to a jury under proper instructions, its verdict in favor of either party upon all the issues is, for the purposes of an appeal, conclusive as to such question.
3. The action of a trial court in sustaining an objection to a preliminary question, relating to a collateral and apparently immaterial subject, must, in order to receive attention on appeal, be followed by an offer to prove the facts sought to be thereby elicited. Hanson v. Township of Red Rock (S. D.) 63 N. W. 156.
4. Ordinarily it is not error to refuse to admit evidence of uncommunicated alleged fraudulent representations made to a stranger, and in no manner brought to the knowledge of the party seeking to rescind a sale of personal property, and regain possession thereof, upon the sole ground that defendants rendered to plaintiffs a statement of their financial condition, in which the value of the available property was overestimated, and upon which plaintiffs wholly relied.
5. A specific statement of assets and liabilities, purporting to be only approximately correct, made by retail merchants to wholesale dealers, as a basis for credit, which itemized liabilities and property included, and shows upon its face that the proposed customers are greatly involved, and doing an extensive credit business, and have included in their assets past-due notes and accounts, aggregating an amount greatly in excess of their purported net capital, is not sufficient, as a matter of law, to rescind a sale and delivery of goods, upon the ground of false and fraudulent representations, when it appears from the undisputed evidence that plaintiffs actually knew when the credit was extended that defendants were unable to pay their just debts as they matured in the ordinary course of business; and the fact that defendants omitted to notify plaintiffs of the pendency of a suit based upon a portion of their acknowledged indebtedness, for the alleged reason that they believed the creditor who instituted the suit never intended to reduce to judgment the subject thereof, was a circumstance to be considered by the jury, together with other evidence offered at the trial.
Appeal from circuit court, Bon Homme county; E. G. Smith, Judge.
Action of claim and delivery by Tootle, Hosea & Company against John R. Petrie, sheriff. From an order denying a new trial, after verdict for defendant, plaintiffs appeal. Affirmed.Kean & Sherman (T. H. Null, of counsel), for appellants. French & Orvis and R. J. Gamble, for respondent.
Based upon a claim of ownership and right to immediate possession, this action is against a sheriff, in claim and delivery, to recover the possession of an invoice of merchandise sold and delivered by plaintiffs to the firm of Lavender & Spannagel, and afterwards seized and sold under an execution issued upon a judgment against said firm in favor of one Bogart, another creditor of the partnership. It is alleged and claimed that, by reason of, and relying upon, certain false and fraudulent representations made by the firm of Lavender & Spannagel, respecting their financial condition, plaintiffs were induced to sell and deliver to said firm the property described in the complaint, and, in consequence of said financial property statement and false representations, they now claim the right to rescind the sale, and reclaim the possession of said property from the sheriff. The defendant justified the seizure of the property under the execution, and denied the allegations of fraud. The case was tried to a jury, and resulted in a verdict in favor of defendant and against plaintiffs, and from an order overruling a motion to vacate said verdict, and grant a new trial, this appeal was taken.
The firm of Lavender & Spannagel were government contractors, copartners, engaged in buying and selling live stock, and in keeping a general retail store. On the 10th day of February, 1890, for the purpose of obtaining credit with the plaintiffs, a copartnership engaged in the wholesale mercantile trade, and in response to an inquiry concerning their financial condition, Lavender & Spannagel made and delivered to, and upon a blank furnished by, plaintiffs a statement of their assets and liabilities; and again, on the 21st day of July, 1890, when plaintiffs were considering the propriety of extending to them further credit, by the sale and delivery of the goods in controversy, and in response to a request for a full and complete statement, they informed plaintiffs that their assets and liabilities were practically the same as shown by the statement of February 21, 1890. In the enumeration of liabilities contained in such statement, opposite the item “Owing on any other debt, of any kind whatever,” there was some ambiguity, and a dispute arose at the trial as to the amount specified. Mr. Spannagel, who prepared the property statement, testified positively that the amount was $20,000, and was so represented upon the statement of assets and liabilities when the paper left his hands, upon its way to plaintiffs. Mr. Wheeler, a member of the partnership plaintiff, testified, in effect, that the item was $2,000, as he read it, when the statement was first placed in his hands by his assistant credit man, and that certain changes have since been made upon the paper; and in this he was corroborated by two witnesses, who testified that the amount was $2,000 when it reached plaintiffs' office, and that since that time an additional cipher has been placed in the debit column, and the amount changed to $20,000. The question was submitted to the jury under a proper instruction, and being material, and at issue, and there being a direct conflict in the evidence involving the veracity of witnesses, and the jury having returned a general verdict in favor of the defendant upon all the issues, we must, for the purposes of this appeal, conclude that the amount of the item as specified was originally $20,000.
In support of the allegations of their complaint, and as a basis for the introduction of a letter under date of July 21, 1890, addressed to plaintiffs by Lavender & Spannagel, in response to an inquiry concerning their financial condition, and in which they assured plaintiffs that their assets and liabilities were “practically the same as last spring, when you received statement from us,” the following report, to which said letter related, was offered and received in evidence:
“Scotland, 2/10, 1890.
“The following is a statement of our assets and liabilities, made to Tootle, Hosea & Co., for the purpose of obtaining credit with them:
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