Mettel v. Gales

Citations

• 12 S.D. 632
• 82 N.W. 181
• 1900 S.D. LEXIS 81

Syllabus

<p>1. Since no appeal lies until an order has been entered as a permanent record in the trial court, an appeal from an order denying defendant's motion for a new trial, taken nine months before the entry of such order, cannot be considered.</p> <p>2. Valiere the undisputed evidence showed that plaintiffs had not compromised their claims against defendant for sinking a well, as alleged in defendant's answer, an instruction in relation thereto, erroneous, as an abstract proposition of law, was harmless.</p> <p>3. Comp. Laws § 3593, provides that a contract in writing may be altered by a conti act in writing, or by an executed oral agreement and not otherwise. Section 3570 declares that an executed contract is one the object of which is fully performed. Plaintiffs agreed in writing to use 41-inch piping in sinking a. well for defendant, for which they were to receive $1,500. The agreement provided that, if b should be impossible to use piping of the size stipulated, plaintiffs might use 3-inch piping, in which case they shoulld receive 3950. Thereafter, on its becoming impossible to use 41-inch piping for the entire well, the parties orally agreed to the substitution of piping of sizes o'her than those previously agreed, for a part of the distance, for which defendant was to pay $1,500. Held, that plaintiffs could not recover for a balance due under the conract as modified on the completion of the,well, since the parol modification was executory merely.</p>