Watkins v. Bowyer

173 N.W. 745, 42 S.D. 189, 1919 S.D. LEXIS 112

• Court: South Dakota Supreme Court
• Decided: August 15, 1919
• Docket: File No. 4536
• Status: Published

Opinion

POLLEY, J.

The complaint in this action alleges that defendants entered into a conspiracy to defraud plaintiffs by selling them certain cattle which defendants knew to have been stolen. The cattle were brought into the neighborhood where plaintiffs and defendants lived by the defendant Kindred and one Hudspeth. Defendant Bowyer, knowing the cattle had been stolen, purchased them from Kindred. Afterwards Kindred purchased a part of the cattle 'back from Bowyer and sold them to plaintiff. Some time thereafter the cattle were found and retaken by their rightful owners, and plaintiffs now seek to recover from defendants the purchase money; together with interest and expenses. Defendant Kindred failed to answer, and judgment was taken against him by default. Bowyer interposed an answer, which in effect amounts to a general denial. Plaintiffs 'had judgment, and Bowyer appeals.

It is contended by appellant that there is no evidence tending to prove a conspiracy by the defendants, and that, the property involved being personal property, respondents can look only to their immediate grantor for damages.

[1] Under the undisputed facts in the case, it is not necessary to prove the conspiracy. The conspiracy, if proven, does not constitute the gravamen.of the case. It is the fraud and deceit that was practiced upon plaintiffs, to their injury, that constitutes the real cause of action. If appellant knowingly aided and assisted Kindred in-' perpetrating the fraud upon plaintiffs, then he is equally liable with Kindred. Green v. Davies, 182 N. Y. 499, 75 N. E. 536, 3 Ann. Cas. 310; Perry v. Hayes et al., 215 Mass. 296, 102 N. E. 318. Proof of the conspiracy might have been necessary had an attempt been made to bind one of the defendants by the declarations or- conduct of the other. Brackett v. Griswold, 112 N. Y. 454, 20 N. E. 376. But no such attempt was made, and the allegations of conspiracy may be treated as mere surplusage.

[2] Nor is it material, as claimed by appellant, that he received no part of the proceeds of the illegal transaction nor was to be benefited in any manner thereby. Recovery may be had from one who makes false representations of a material fact with an intention to induce the person to whom it is made, in reliance upon it, to do or to refrain from doing something to his pecuniary injury, when such person, acting with reasonable prudence, is thereby deceived and induced to. do what he otherwise would not have done. Busterud v. Farrington, 36 Minn. 320, 31 N. W. 360.

It is 'claimed 'by plaintiffs, and there is an abundance of evi- dence in the record to warrant a finding by the jury to that effect, that before they made the purchase -from Kindred one of the plaintiffs went to the appellant for the very purpose of learning what he could relative to Kindred’s title to the cattle ani his rig-lit to sell them, and that appellant told said plaintiff that he (appellant) had purchased the cattle from a man by the name of Iiess, who lived near Wayside, in the state of Nebraska,' that he (appellant) had a bill of sale for the cattle from said Hess and that the cattle were “absolutely all rig'ht”; that appellant recommended plaintiffs to buy the cattle and said that he believed they could make some money on them. Appellant admitted that he told the witness that he (appellant) bought the cattle from a man named Hess, who was a rancher near Wayside, Neb., and defendant Kindred testified that it was appellant who first suggested that he sell the cattle to plaintiffs. This was a sufficient representation by appellant to render him' liable to plaintiffs for the injury they suffered by reason of having acted upon such representations.

[3] At the trial, plaintiffs’ counsel, for the purpose of impeaching the appellant, asked a witness if she knew appellant’s reputation for truth and veracity in the ’ community in which he (appellant) lived. The witness answered that she did, and in reply to a further question she answered that, so far as she knew, such, reputation was good Upon the strength of this testimony, counsel for defendant requested the following- instruction:

“The jury are instructed that the plaintiffs’ counsel, during the progress of the case, asked witness Mrs. Bennet as to the general reputation of the defendant Bowyer for truth and veracity, who testified that it was good. The plaintiffs thereby made the witness their witness upon that subject; no other testimony having been offered upon that subject. The reputation of the defendant Bowyer for truth and veracity is therefore establshed as good, for the purposes of this case.”

The court refused to give the instruction, and such refusal is assigned as error. This instruction was properly refused. The effect of the instruction, if given, would have been to tell the jury that they must accept as true all the testimony given by appellant. Whether the effect of the question and answer was to bar the plaintiffs from further attempt to impeach appellant, it is not necessary to determine. No-such attempt was made, and the jury was at liberty to believe or disbelieve appellant’s testimony, according as they saw fit.

[4] One of the grounds upon which a new trial is asked is that one of the jurors who tried the case was not a resident of •the county in which the case was tried, and' therefore was not qualified to act as a juror in the case. It is shown, by the affidavit of the juror in question, and by an affidavit by each of appellant’s counsel, that such juror resided upon the Battle Mountain 'Sanitarium grounds, a federal reservation at Hot Springs, in Fall River county. Whether the fact that this juror resided upon a federal reservation within the county would have been a sufficient ground for excusing him from the panel, had the matter been brought to the attention of the trial court at the proper time, it is not necessary to decide. Nor is it necessary to decide the effect of appellant’s failure to' ascertain the place of the juror’s resdence during his examination touching upon his qualifications to act as a juror in the case. It is not claimed that the juror in question did not possess all the legal qualifications of a juror, except that pertaining to residence, and this, we hold, is a disqualification that may be waived by the parties to the action if such disqualification is known before the trial. One of appellant’s counsel states, in his affiavit, that he’ knew before the trial that said juror resided upon the federal reservation. This being true, he should have challenged the juror for cause and had him excused before the trial. A party may not try a case to a juror whom he knows to be disqualified and then, after a verdict is rendered against him, have such verdict set aside because of such disqualification.

No error appearing upon the record, the judgment and order appealed from are affirmed.