Nebraska Land & Live Stock Co. v. Burris
Nebraska Land & Live Stock Co. v. Burris
Opinion of the Court
This action was instituted by the plaintiff to recover $225, alleged to be due it for wood and a team of horses claimed to have been converted by the defendant. The defendant interposed a general denial, and pleaded a number of counterclaims. The case was tried to a jury who found for the plaintiff in the sum of $134.45, and for the defendant $844.35; and a judgment was thereupon entered for the defendant for $709.90 and costs. Prom this judgment, the plaintiff has appealed. No motion for a new trial was made, and hence the only questions presented for our consideration are questions of law.
The first error assigned is that the court erred in its refusal to grant a continuance. The affidavit upon which the motion was made, after setting up the usual preliminary matters, set out the facts it was claimed could be proved by the absent witness. Respondent contends that this evidence would have been irrelevant and immaterial, and could not have been admitted in evidence under the issues raised by the pleadings. In this contention we are of the opinion, the respondent is cor
The affidavit is also insufficient as to the statement of facts the plaintiff expected to be able to prove by Galbraith, who was claimed to be an absent witness. The affiant states that the defendant represented to him that he sold the team to one Diehl, and that he did not learn until two days before the trial that he sold the team to Galbraith, instead of Diehl, and that he “knows of'no other witness by whom said facts can be fully proven.” As the gist of the action was a conversion of the property, and the sale by the defendant was admitted by him, it was not material to whom the sale was made. The granting or refusing of a continuance is largely within the discretion of the trial court, and its action will only be reviewed by this court where there has been a manifest abuse of this discretion. In this case there was not only no abuse of its discretion shown, but the court was clearly right in denying the continuance. Gaines v. White, 1 S. D. 434, 47 N. W. 524; Stone v. Railway Co., 3 S. D. 330, 53 N. W. 189.
The next error assigned discussed by counsel for appellant is that the court erred in admitting the evidence of the witness Allen. The defendant, in support of his second counterclaim, sought to prove damages for the failure of the plaintiff to furnish a supply of water to irrigate the land included in a cropping contract entered into by the plaintiff with defendant, which plaintiff agreed to furnish, and for that purpose called Allen, who testified that he had an irrigated farm in the county,
The contention of the learned counsel for the appellant that this evidence was speculative, and an attempt to prove prospective profits, as the basis for a recovery of damages, is untenable. Evidence as to the quantity a given tract of land will yield of grain or other products, under a given state of circumstances is no more speculative than evidence of the rental value of tenements in a city or town or the rental value of farm lands,
The last assignment of error discussed is that the court erred in its instructions to the jury. The court seems to have submitted all questions of fact to the jury, and read to them Section 4581, Comp. Laws, which prescribes the measure of damages in cases of breach of contract, and declared that was
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- 1. The refusing a continuance is largely in the discretion of the trial court, and will not be reviewed, unless there has been a manifest abuse of such discretion. 2. Whore a continuance is asked on the grounds of the absence of a witness, and the evidence to be given by the witness, as set out in the affidavit upon which the motion is made, is inadmissible under the pleadings, it should be denied. 3. In a.n action for damages for breach of a contract to irrigate land, a witness who testified that he had a farm that had been irrigated for the past two years, and was acquainted with character of the land farmed by defendant, as compared with his own, was asked. “How much, in your opinion, would fifty acres of fodder corn, properly irrigated on defendant’s place, yield?” Held not objectionable, as being speculative and an attempt to prove prospective damages. 4. When a contract provided for the furnishing of 50 cows, and also for the irrigation of a certain farm, and that the crops raised on the farm, should bo fed to these cows, and the contractor failed to furnish the cows or to irrigate the farm, in an action for damages for breach of contract it was not error to submit to the jury both the questions of measure of damages for failure to furnish the cows and failure to irrigate the farm.