Simpson Brick Press Co. v. Marshall

Citations

• 5 S.D. 528
• 59 N.W. 728
• 1894 S.D. LEXIS 88

Syllabus

<p>1. The right to maintain an action in claim and delivery is not conditioned upon the making of an affidavit and undertaking, under sections 4972, 4973, Comp. Laws, for immediate possession.</p> <p>2. Such statutory proceeding is ancillary, and may be resorted to or not, at the option of the plaintiff.</p> <p>3. Where, in such action, plaintiff makes a claim ag'ainst defendant for damages for detention, defendant may plead and prove a counterclaim, arising out of the same transaction, against such claim for damages.</p> <p>4. Damages which are not the direct or natural result of a party’s default, but of intervening and exceptional causes, are consequential, and are only recoverable against such party when it is shown that he knew or ought to have known or forseen that such causes or conditions did or would likely exist, and so may be considered to have contracted with reference to or in contemplation of them.</p> <p>5. Where defendant, engaged in the making and selling of brick in Rapid City, S. D., bought of plaintiff a brick press, to be shipped from Cleveland, Ohio, within a reasonable time, the shipping of which was delayed nearly sixty days, defendant was not entitled to prove in support of his counterclaim for damages for such delay that soon after giving such order he tore down the buildings in and dismantled his yard, thus rendering himself unable to make brick for his current trade or to fill orders theretofore taken, whereby he suffered loss, in the absence of any showing that plaintiff knew or ought to have known that such changes would be necessary or provident or would be made, or that defendant had not a sufficient supply of brick on hand for his current trade and contracts.</p> <p>(Syllabus by the Court.</p>