Zipp v. Colchester Rubber Co.

Citations

• 12 S.D. 218
• 80 N.W. 367
• 1899 S.D. LEXIS 105

Syllabus

<p>1. The admission oí the averments of a complaint alleging the'execution, and breach of a mutual agreement to buy and sell merchandise entitles plaintiff to at least nominal damages, and hence an objection to the introduction'oí testimony on the ground that the complaint does not state facts sufficient to constitute a cause oí action was properly overruled.</p> <p>2. In in action by the buyer against the'seller for a breach of a mutual written agreement to buy and sell, evidence of a written order for goods signed by defendant by a salesman was admissible, if it was shown to have been accepted, though it was not signed by plaintiff, and the salesman was unauthorized to sign the same for defendant.</p> <p>3. An objection that a paper admitted to prove a written agreement was a copy, and that no proper foundation had been laid for the admission of secondary evidence, comes too late on appeal.</p> <p>4. One of the original duplicate copies of a written agreement is primary evidence thereof.</p> <p>5. In an action by (he buyer for the breach of a mutual written agreement to buy and sell merchandise, based on written orders therefor given to defendant’s salesman, and accepted by defendant in writing, testimony of plaintiff's agent who negotiated for the goods that, when the orders were filled out, he agreed with the salesman to receive the goods, and pay for them for plaintiff on a certain date, is admissible to show that plaintiff, through her agent, authorized the salesman to transmit the orders, and that they were in fact orders to buy the goods described at the prices and on the terms stated therein.</p> <p>6. Objections to the admission of parol evidence of letters on account of defects in the admission of preliminary evidence comes too late on appeal.</p> <p>7. Notice to a party to produce a writing in his possession directly involved in the cause of action or defense, so that the nature of the action or the contents of the pleadings give notice that it will be r