Sherman v. Port Huron Engine & Thresher Co.

Citations

• 13 S.D. 95
• 82 N.W. 413
• 1900 S.D. LEXIS 116

Syllabus

<p>1. A contract between principal and agent provided that the principal should furnish the agent with machines to fill orders, and that the agent would deliver no machines until the orders therefor were accepted by the principal, and that the agent should receive a commission on machines sold, settled for, and delivered, but that no commission should be paid on any order not filled. The agent forwarded an order for a machine, which the principal refused to fill, and the agent sued for commissions as for a completed sale. Held, that the principal did not have an absolute right to reject the order, and hence the exclusion of evidence as to the purchaser’s readiness to comply with the order, and the direction of a verdict for the principal after the agent had introduced testimony tending- to prove that the principal should have been satisfied therewith, was error.</p> <p>2. The .law as announced by the supreme court in an opinion reversing- a judgment and ordering a now trial will be adhered to on an appeal therefrom, though erroneously slated, since it would be unjust to litigants for the supreme court to express its opinion on a subject likely to arise on second trial, and adopt a different view on the second appeal.</p> <p>3. On an issue as to the terms of a note at the time it was sent to a bank for collection, it was error to sustain an objection to the introduction of a note on a retrial of the action after an appeal on the ground that it had been altered by an erasure, and that no other note could be introduced than the one contained in the bill of exceptions settled after the former trial, and to again exclude the note after a witness had testified that it was in the same condition as at the time of its execution, since the record of the former appeal was not conclusive of such question, and whether the note had been altered was a question for the jury.</p> <p>Fuller, P. J., dissenting.</p>