Roberts v. Brown

153 N.W. 765, 35 S.D. 618, 1915 S.D. LEXIS 96

• Court: South Dakota Supreme Court
• Decided: July 24, 1915
• Docket: File No. 3744
• Status: Published

Opinion

WHITING, J.

Plaintiff brought .this action against defendant to recover the amount which she claimed to be due under a contract for services. Plaintiff claimed that defendant was the owner of a certain millinery business conducted for him by one C., and that C., as defendant’s agent, entered into the contract with plaintiff. Plaintiff recovered- judgment, and defendant appealed from the judgment and an order refusing a new trial.

Several errors are assigned, but we find it unnecessary to consider any, except those questioning the sufficiency of the evidence to support the verdict and judgment. Under the pleadings, the evidence, .and the unchallenged instructions of the court, plaintiff was not entitled to recover, unless the evidence showed defendant to be the owner of the millinery business and G. but his agent in charge thereof. We are unable to find any evidence to support the claim' that defendant was such owner of such business during any of the time plaintiff was employed. Moreover, plaintiff offered no evidence to show that, either at the time she was employed by C. or at any time during such employment, she considered defendant the owner of such business. To our minds the evidence conclusively shows that defendant purchased a stock of merchandise and started C. in business on 'C.’s own account, and that defendant’s only interest in such business was owing to the advancement he had made C. and to the fact that he afterwards guaranteed certain bills of goods purchased by C.

The judgment and order are reversed.