Hermon v. Silver

Citations

• 15 S.D. 476
• 90 N.W. 141
• 1902 S.D. LEXIS 38

Syllabus

<p>1. Comp. Laws, § 5090, subd. 3, requiring that, when a motion for a new trial is made on a bill of exceptions or statement, appellant shall, if the notice of intention designates as the ground of motion insufficiency of the evidence or errors of law, specify the particulars in which the evidence is insufficient, and the particular errors of law; and subdivision 4, requiring that, when the motion is to be made on the minutes of the court, the notice of intention shall specify the particulars in which the evidence is insufficient, or the particular errors of law — are mandatory, and, where not complied with, neither the trial court nor the supreme court can review the evidence, or the errors of law not so particularly specified.</p> <p>2. Comp. Laws, § 4593, provides that “the detriment caused by the breach of warranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it. had been complied with, over its actual value at that time.” In an action for the purchase price of shoes, defendant set up a breach of warranty as a defense, and requested an instruction that “the measure of damages is the actual value of the goods if they had been as warranted, and what they were when delivered to a person in the line of a retail dealer, and making it his business to sell shoes to the general public for a business.” Held, that the requested instruction did not state the rule of damages correctly, and was therefore properly refused; an instruction according with the statute being given instead.</p>