Henton v. Spencer

136 N.W. 112, 29 S.D. 190, 1912 S.D. LEXIS 166

• Court: South Dakota Supreme Court
• Decided: May 7, 1912
• Status: Published

Opinion

McCOY, P. J.

It appears from the record that on June 3,1908, plaintiff purchased from appellant, the defendant, a horse for the purchase price of $1,050. That in settlement and satisfaction of said purchase price plaintiff, in cash and other property, paid to defendant $650, and also executed and -delivered to defendant h-is promissory note for $400, secured by chattel mortgage upon said horse. That defendant, before the maturity of said note, transferred and assigned said note and mortgage to. the Security Bank of Montrose, who, after the maturity thereof, brought suit against ■plaintiff in this action, as defendant therein, to foreclose sai.d chattel mortgage. That in said action this plaintiff, as defendant therein, appeared and made answer, alleging a breach of warranty-in the sale of said- -horse, and sought to counterclaim the damages against the said note and chattel mortgage lien. That said foreclosure action was tried to the court, without a jury, and the court in this action made findings, among others, as follows: “That thereafter, and before the maturity of said note,'the plaintiff purchased said note of said N. W. Spencer, in the ordinary-course of business, paying him the sum of $400 therefor, and same was so purchased in good faith, without any notice on the part of plaintiff of -any defense that the defendant had or claimed against the payee, and the plaintiff then became, and still is, the bona fide owner thereof for value; that no evidence was introduced, sufficient to sustain the allegations of the answers, or any of them; that none of the defenses of defendant’s answer are available against the plaintiff.” Judgement was thereupon rendered in favor of plaintiff, Security Bank of Montrose, against the defendant therein, who- is plaintiff and respondent in this action. Thereafter respondent brought this- action against the appellant, N. W. Spencer, to recover damages for breach of warranty on the sale of said horse. On- the trial, verdict and judgment were in favor of plaintiff, and defendant appeals.

In his answer to the cause of action in this case, appellant pleaded the findings and judgment in the former action of Security Bank of Montrose v. Benton, this plaintiff, as a bar to recovery in this action. On the trial, appellant offered in evidence the judgment roll and findings and judgment in the said former action, to which respondent objected, on the grounds, among -others, that appellant was not a party to said former action; and that no privity is shown between appellant and either of the parties to said former action. The objection being sustained, appellant duly excepted thereto, and now. assigns the said ruling of the court as error. We are of the opinion that the learned trial court ruled correctly. The findings of the trial court in the former action that the note and mortgage were assigned1 to the plaintiff bank before maturity, for value, and without notice, and that the defense of breach of warranty and damage 'was not available to respondent in' that action, preclude the judgment in that action from constituting a bar to recovery in this. Appellant was not a party or in privity with any party to the former action.

The judgment of the lower court is affirmed.