Babcock v. Ormsby

Citations

• 18 S.D. 358
• 100 N.W. 759
• 1904 S.D. LEXIS 65

Syllabus

<p>1. Right to move the court for a new trial for errors in the report of the referee, properly excepted to, is not lost by the parties stipulating that the report be in all things accepted and adopted; the word “adopted,” as so used, having the same meaning as the word “accepted,” and the effect of the stipulation being merely to waive the right to question the authenticity of the report on the settlement of a bill of exceptions.</p> <p>2. The authority given a referee to “decide any question which arises on the trial, sign p, report or settle a case,” does not relieve the trial court .of the statutory duty to settle the bill of exceptions.</p> <p>3. Defect in a notice to take depositions, in not naming a person whose deposition was taken, is waived by the adverse party appearing and cross-examining the witness.</p> <p>4. Allowing an amendment of the complaint, changing its allegation that defendant, through its agent, entered into the contract, to one that defendant itself entered into it, being to conform the allegation to the testimony, is proper, no substantial prejudice being shown.</p> <p>5. Letters, one from plaintiif to defendant, reciting, “If you desire to sell these tracts, * * * give me your price, and 1 will see what can be done;” another, from defendant to plaintiff, “I am listing this property at $1,600. * * I shall be glad to favor you in any way I can, and if you can work kp a sale I shall be glad to allow you a commission;” another, from defendant to plaintiff, stating that the party making inquiry thought the price too high, and asking whether a lower price could be made, and what commission could be allowed; another, from defendant, stating, “I believe I should hate to see these lands go at $1,600 apiece not to me, but if you can find a buyer at that, and get your commission above it, we will try to put the deal through;” and another, from plaintiff, stating, “I have a customer for both tracts, who will take them at $1,600 a quarter section” — d