Aultman Co. v. Ferguson

Citations

• 8 S.D. 458
• 66 N.W. 1081
• 1896 S.D. LEXIS 60

Syllabus

<p>1. A mortgagee of chattels brought claim and delivery to recover possession of certain property described in the moragage, which was given to secure the price of an engine sold by plaintiff to defendant, and after-wards commenced another action to foreclose such mortgage. Defendant, in its answer in each action, set up a breach of warranty of the engine, and in the second also claimed damages for a breach of a subsequent agreement relating to the engine. The parties then stipulated that “said foreclosure action stall stand for trial in said court before a trial of fact in said action in claim anjl delivery.” Held, that it was within the discretion of the court to order such actions consolidated, notwithstanding the stipulation.</p> <p>2. In an action to foreclose a mortgage given to secure the price of an engine, and to recover possession of property covered by the mortgage, defendant pleaded a breach of warranty. Held, that it was error not to exclude evidence by defendant that two years after such sale the engine “in its present condition,” was of no valup to him, but would have been worth to him $1,050 had it fulfilled the warranty.</p> <p>3. A witness who had never seen the engine in dispute, but had heard the other witnesses testify, was not competent to state what the engine was worth in its condition as described by such witnesses.</p> <p>4. A certain witness and defendant testified that the engine in question was worth nothing; but on cross-examination the former testified that the whole trouble with the engine might have been due to the slipping of an eccentric, or the failure of the pumps to work properly, which might have been caused simply by the lack of a little packing, and, if these two things had been fixed, it might have worked all right. Held, that it was error not to permit such witness to be asked how much time or expense it would take to make such repair.</p>