Martin v. Graff , 10 S.D. 592 ( 1898 )

Fuller, J.

The complaint in this action, so far as essential to the questions presented, is as follows: “The plaintiff, for cause of action against the defendants, alleges * * * * that heretofore, jp wit, on the 8th day of October, A. D. 1887, the defendants made, executed, and delivered to the Pitts Manufacturing Company their certain joint promissory note in writing, dated that day, whereby and wherein, for value received, on or before the 1st day of January, A. D. 1889, they promised and- agreed to pay to the said Pitts Manufacturing Company the sum of $153.46, with interest thereon at the rate of 8 per cent per annum from date till paid; that prior to the maturity of said note, for a good and valuable consideration, and in the due course of business, the said note was by the said payee therein named duly sold, indorsed, and delivered to this plaintiff, who is now the owner and holder thereof; that said note is long past due, and wholly unpaid; and that payment thereof has been duly demanded. * * * Wherefore plaintiff demands judgment,”-etc. On information and belief, defendants, in effect, denied the execution and delivery of the note described in the complaint, and for a further and complete defense relied upon a breach of warranty, occasioned by the failure of a certain threshing separator purchased from the H. A. Pitts & Sons Manufacturing Company to do work for which it was intended in a manner equally as good as any other machine in the market.

At the trial, counsel for defendants objected to the introduction of any evidence under the complaint, for the reason that the facts therein stated are not sufficient to constitute a cause of action, and the overruling of this objection is urged as reversible error. The ruling of the trial court is fully sustained by the following decisions: Johnson v. Burnside, 3 S D. 230, 52 N. W. 1057; Jenkinson v. City of Vermillion, 3 S. D. 238, 52 N. W. 1066; Sherwood v. City of Sioux Falls, 10 S. D. 405, 73 N. W. 913.

After plaintiff had made out aprima facie case and rested, defendants produced a witness, and offered to prove that they had suffered damages in the sum of $500 by reason of the breach of warranty entered into with an agent of the H. A. Pitts & Sons Manufacturing Company, of whom they purchased the separator mentioned in their answer, and ‘ ‘that no transaction was ever had by them with the H. A. Pitts Manufacturing Company, and no note ever executed by them to the EL A. Pitts Manufacturing Company, or delivered to the H. A. Pitts Manufacturing .Company. ” As the note in suit was executed and delivered by the defendants to the Pitts Manufacturing Company, duly indorsed, and the property of plaintff, evidence of transactions between defendants and an agent of the EL A. Pitts & Sons Manufacturing Company, or the EL A. Pitts Manufacturing Company, being clearly incompetent, was properly excluded. A regardful examination of the record discloses no error, and the judgment appealed from is affirmed.