State Bank v. Sukut

Bronson, Oh. J. This is an action upon a promissory noto. . Plaintiff has appealed from the judgment and from an order denying judgment non obstante, or, in the alternative, a new trial. Three different juries have considered the merits. The first jury found in favor of the defendant. The second jury disagreed. Thereupon the trial court granted plaintiff’s motion for a directed verdict and judgment was entered for plaintiff. Defendant appealed. This court, upon such appeal, reversed the judgment and ordered a new trial. State Bank v. Sukut, 48 N. D. 987, 187 N. W. 960. This cause, accordingly, is again before this court after another trial in the district court before the, same judge that presided at the previous trial. The issues of fact were submitted to the jury upon instructions the same as those given to the jury in the previous trial. The evidence adduced at this last trial was substantially the same as the evidence in the previous ¡trial. It is unnecessary to restate the facts. See former opinion of this court. That opinion announced the law of the case applicable. Plaintiff maintains that, as a matter of law, the evidence is insufficient to warrant findings of any breach of warranties or defects in the tractor; or of want of good faith by the plaintiff. "\Yo are of the opinion, following the law of the case announced in the former appeal, that these questions were for the jury. Plaintiff contends that the trial court erroneously instructed the jury to the effect that they should find for the defendant if plaintiff wás not a holder in due course, without giving appropriate attendant 'instructions concerning warranties, breach of warranties, and rescission. The trial court did submit to the jury the issue whether warranties were made and whether breach thereof occurred. By written, as well as oral, evidence, rescission was established. The court assumed, as a matter of law, that rescission was if warranties were made and breaches thereof had occurred. The trial court submitted the written instruc [400] tions to counsel for examination. Plaintiff objected in writing- to the? same by insisting upon a directed verdict and objecting to the instruction above mentioned. Plaintiff did not submit requested instructions and did not in any manner point out wherein the instructions wore insufficient. Accordingly, we find no error in tlie instructions. Complaint is made that plaintiff was entitled, in any event, to recover for the plows, oil, etc., furnished. The contract concerning' the tractor was, upon the record, an entire contract. Under the statute concerning rescission, defendant was entitled to rescind this contract if the consideration failed in a material respect from any cause. Comp. Laws, 1913, § 5934. See Fletcher v. Arnett, 4 S. D. 615, 57 N. W. 918. The judgment and order are affirmed with costs. Christianson, Johnson, and Birdzeix, JJ., and McKenna, Dist. J., concur. McKenna, District Judge sitting vice Ndessle, J., disqualified.