Brown v. McCaul

Citations

• 6 S.D. 16
• 60 N.W. 151
• 1894 S.D. LEXIS 118

Syllabus

<p>1. In an action to recover commissions on sales of farm machinery sold by plaintiff’s assignor under a'contract which provides that “all commissions are to be paid in paper or money, as the sale may be made, but in no case shall said second party [the plaintiff’s assignor] select his own paper,” the plaintiff is entitled to recover only the actual value of such paper as shall have been properly selected under the terms of the contract.</p> <p>2. Where a contract in evidence in an action has been construed by the trial court in its instructions to the jury, and. there are no exceptions taken to such instructions by either party, such construction will be assumed, on an appeal from the judgment, to be correct for the purpose of the determination of such appeal; and counsel, on such appeal, will not be permitted to question the correctness of such construction.</p> <p>3. Where, under the terms of the contract as construed by the trial court, the defendants selected certain notes from those taken in payment for farm machinery sold by plaintiff’s assignor under the contract, sufficient at their face value to pay the commissions due to the plaintiff’s assignor, and notified the plaintiff of such selection, they so far complied with the terms of their contract as to be liable only for the actual value of the notes so selected; and the verdict of the jury for the face value of the notes was erroneous, and a new trial should have been granted, as the evidence was undisputed that the actual value of the notes selected was much less than their face value.</p> <p>(Syllabus by the court.</p>