Wright v. Dubbelde

• Decision Date: 13 May 1919
• Docket Number: No. 4475.,4475.
• Citation: 42 S.D. 12,172 N.W. 500
• Parties: WRIGHT v. DUBBELDE et al.
• Court: South Dakota Supreme Court

42 S.D. 12

172 N.W. 500

WRIGHT

v.DUBBELDE et al.

No. 4475.

Supreme Court of South Dakota.

May 13, 1919.

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Action by G. W. Wright against Arnold Dubbelde and others. Judgment for plaintiff, and defendants appeal. Reversed.Kirby, Kirby & Kirby, of Sioux Falls, for appellants.

Berdahl, Waggoner & Stordahl, of Sioux Falls, for respondent.

POLLEY, J.

This action was brought to recover damages for the alleged failure to perform the conditions of a contract for the delivery of 2,000 bushels of corn, of specified grades and at fixed prices, to be delivered to plaintiff at Valley Springs, in this state, on or before a certain future date. Plaintiff, after securing the contract resold the corn to parties in Minneapolis, at a price in advance of the purchase price, to be delivered on or before the date named in the contract with defendants. Plaintiff alleged that defendant failed to deliver the corn within the time fixed by the contract, and for that reason he was unable to perform his contract to deliver the corn to the Minneapolis parties; that, because he failed to deliver the corn to the Minneapolis parties at the time named in the contract, he was obliged to, and did, pay them the difference between the contract price and the market price of the corn, on the date of delivery, amounting to $1,350. He then asked judgment for this amount, plus $40 profit he claims he would have made if the corn had been delivered according to the terms of the contract. For answer, defendants interposed a general denial, except as to the making of the contract, and alleged that they had fulfilled the conditions of the contract.

[1] It is not disputed that, during the time between the making of the contract and the time fixed for the delivery of the corn, defendants delivered to plaintiff a quantity of corn equal in amount to the quantity called for by the terms of the contract; but plaintiff claimed that the corn so delivered was of a grade inferior to that called for by the contract, and was not accepted by him as a performance of the contract on the part of the defendants. The testimony on this point was about evenly balanced, but the court charged the jury that the burden of proof was upon defendants to show, by a preponderance of the evidence, that the corn they delivered was accepted by plaintiff as a compliance with the terms of the contract in question. This instruction was excepted to...