double the amount of damages incurred by | liability for actual damages for such injufires communicated by locomotive engines." On July 22, 1908, appellant served upon respondent an offer in writing to pay him $500 in full for his damages. On the trial a verdict was returned in favor of respondent for $780. Later respondent served a notice of motion for judgment, and the court directed a judgment in double damages, together with costs, and thereupon a total judgment of $1,715.35 was entered against appellant. The only questions presented on this appeal relate to the constitutionality of the act under which the judgment for double damages was entered. ries becomes absolute and fixed whenever the injury occurs, irrespective of whether the company has been guilty of negligence or of a violation of any duty imposed upon it by law. It would seem, therefore, that the only duty the failure to perform which is penalized by this statute is the duty to ascertain and pay actual damages for injuries within 60 days after notice. It may be conceded, as contended by appellant, that this statute creates an absolute liability for injuries which renders immaterial all questions as to negligence in the operation of railroad trains, as well as failure to comply with statutory requirements, such as fences. cattle guards, etc., but it does also prescribe and create a duty on the part of the company to correctly ascertain and tender the amount of actual damages within 60 days after notice of the injury. The penalty is not imposed because of litigation which may follow the injuries, but because it is made the duty of the company, both to correctly ascertain and to offer to pay the damages. If such a statutory requirement is a proper exercise of police power, it violates no constitutional right. The duty thus imposed may be one of the greatest difficulty and may re It is strenuously urged by appellant that the act of 1907, attempting to impose double damages, is unconstitutional. It is conceded by appellant that such damages are penal in character, and that a railroad company may be required to pay double damages where there has been a violation of some specific duty. It is contended, however, that the failure of duty for which such penalty may be imposed must be one which itself contributes to the injury. It is urged that this act of 1907 creates a debt, an absolute liability, as soon as the injury occurs, with no possible defense thereto, and the only question which can be litigated is the amountsult in injustice in many instances, but this of appellant's damages; and that because court cannot say that it is impossible of perthe parties may fail to agree as to the formance. It may be conceded that a legisamount, and suit is brought in the courts to lative act which should attempt to create determine the controversy, where the rail- an absolute liability to pay double the acroad company is unsuccessful, and the dam-tual damages in every case of injury, where ages assessed are one cent more than the sum offered by the company, then the defendant is penalized in double the amount of actual damages, and this with no correspond-er. But, if it be conceded that this duty to ing liability upon the plaintiff for a failure to agree upon the amount, except the imposition of costs. It is strenuously urged that no class of persons can be singled out and required to pay a penalty for the privilege of appealing to the courts, and that the company may escape double damages only by failing to exercise its privilege of resisting in a court of justice a debt which, in amount, it deems unjust. Our attention has not been called to any decision holding that the violation of duty for which such a penalty may be imposed by statute must be a violation of a duty which contributes directly to the specific injury complained of. It is true that in most instances the duties for a violation of which double damages are imposed are duties tending to guard against injuries which may result in some manner from the operation of railroads, but no case has been cited which holds that a failure on the part of the company to pay actual damages may not be penalized by statute. It is plain that the statute under consideration does not by any of its provisions attempt to penalize the railroad company because of its failure to comply with any specific duties arising in no failure of any duty, within the scope of police power or control is involved, might be a questionable exercise of legislative pow correctly ascertain the actual damages is one which may be imposed as an exercise of police power, such an enactment cannot be held to interfere with any constitutional right. The weight of judicial opinion seems to us to sustain the proposition that such a requirement is a proper exercise of police power. In the case of Jensen v. South Dakota Central Railway Co., infra, this court said: "Another ground for the exercise of such police power found in the enactments in question is that the injury actually received in such cases is often so small that in many cases no effort would be made by the sufferer to obtain redress, if the private interest was not supported by the imposition of some punitive damage. Such seem to be the principles established by the following authorities: M. & St. L. Ry. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585; Welsh v. C., B. & Q. Ry. Co., 53 Iowa, 632, 6 N. W. 13; Bennett v. Wabash Ry. Co., 61 Iowa, 355, 16 N. W. 210; Mo. Pac. Ry. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463; Atchison, T. & S. F. Ry. Co. v. Matthews, 174 U. S. 96, 19 Sup. Ct. 609, 43 L. Ed. 909; Freund on Police Power, pp. 630-637." The decided by this court in Jensen v. South Da- | commissions on the sales of farm machinery for the defendant. It is alleged in the complaint in effect that the defendant had collected the sum of about $2,000, to which the kota Central Railway Co., 127 N. W. 650, and that case must be held to be decisive of this appeal. The order and judgment of the trial court plaintiff was entitled as commissions due are therefore affirmed. WALTON V. NICHOLS & SHEPARD CO. (Supreme Court of South Dakota. Oct. 4, 1910.) 1. PRINCIPAL AND AGENT (§ 23*)-AGENCYEVIDENCE. Evidence, in an action for commissions of C. & H., local agents to sell machinery for defendant, held to authorize a finding, in the case of a sale to W., for which no commissions are claimed, which sale was closed by B., traveling salesman of defendant, that B. was not the agent of C. & H., or assisting them, in the sale, so as to make them liable, under their contract of employment, as guarantors of the notes taken from W. in payment. [Ed. Note. For other cases, see Principal and Agent, Dec. Dig. § 23.*] 2. PRINCIPAL AND AGENT (§ 89*)-ACTION FOR COMMISSIONS-DEDUCTION FOR GUARANTY. Though agents to sell machinery, who, by provision of their contract of employment, guarantee notes taken in payment for machinery sold by them, make no claim for commissions on a sale to M., yet defendant having pleaded, as a defense to the action for commissions on other sales, their guaranty of the notes of M., which had not been paid, there was properly deducted from the amount otherwise owing them, not the full amount of such notes, but the part thereof ducting the agents' commission, which was all it would have been entitled to under its contract with them. which would have come to defendant after de [Ed. Note. For other cases, see Principal and Agent, Dec. Dig. § 89.*] 3. PRINCIPAL AND AGENT (§ 89*)-ACTION FOR COMMISSIONS - DEDUCTION FOR GUARANTY OF NOTES-AWARD OF NOTES. Where the judgment, in an action for commissions of selling agents, credits the employer with the amount of notes taken by the agents in payment of articles sold, the notes having been guaranteed by the agents and unpaid, it properly awards possession thereof to the agents; they being entitled to anything that they can collect thereon. [Ed. Note. For other cases, see Principal and Agent, Dec. Dig. § 89.*] Appeal from Circuit Court, Day County. Action by B. A. Walton, trustee, against the Nichols & Shepard Company. Judgment for plaintiff. Defendant appeals. Affirmed. Sears & Potter, for appellant. Walton, for respondent. Wells & CORSON, J. This is an appeal by the defendant from a judgment entered upon findings of fact by the circuit court, and from the order denying a new trial. The action was instituted by the plaintiff as trustee in bankruptcy of the firm of Carlson & Hunter, formerly copartners in the implement business in the city of Webster, to recover of the defendant certain sums alleged to be due said firm at the time of their bankruptcy, as said firm of Carlson & Hunter at the time they became bankrupts. The defendant in effect by its answer denied any indebtedness whatever to the firm of Carlson & Hunter at the time they became bankrupt for the reason that they had, by the terms of their contract with the defendant, become liable to it in a sum in excess of the amount of commissions collected by it and in its possession, as guarantors of the notes taken by them on the sale of farm machinery belonging to the defendant, and that therefore there was nothing due from it to the said Carlson & Hunter. The pleadings and findings are very voluminous, embracing a large number of exhibits and statements of accounts between the parties, and no useful purpose would be served by attempting to set them out in full, or to give even an abridgment of the same in this opinion. It may be stated generally that it is practically admitted by the pleadings that the defendant had in its possession about $1,300 which was collected as commissions earned by the said firm of Carlson & Hunter; but it claims, as before stated, that, by reason of certain stipulations made by Carlson & Hunter in their contract with the defendant as guarantors of notes taken by them on the sale of farm machinery belonging to the defendant, the defendant was entitled to retain the same as against the claim of the plaintiff until the said guaranteed notes were paid. The findings and conclusions of law as originally drawn were in favor of the defendant, but subsequently the court, upon motion of the plaintiff, modified its original findings and conclusions and found the facts and stated its conclusions of law in favor of the plaintiff, and entered judgment thereon in favor of the plaintiff for the sum of $344.79, and the costs of the action. It is contended by the appellant that the court erred in modifying its original findings, not on the ground, as we understand the contention of the appellant, that the court was not authorized to correct its original findings, but on the ground that the findings as finally made were not supported by the evidence. There were two items in the account which were mainly in controversy in this action. The defendant claims that Carlson & Hunter should be charged in their ac count as guarantors of two promissory notes executed by one Wasilk, amounting to about $1.000, which the court disallowed, and that Carlson & Hunter should be charged with the full amount of the notes executed by one Munson to the amount of about $1,075, instead of the sum of about 70 per cent. of the notes, which would be the amount due the defendant as coming to it on account of the guaranty of Carlson & Hunter on the notes of the said Munson. The court, however, in its findings, deducted from the amount guaranteed on the Munson notes the sum coming to Carlson & Hunter as commissions thereon, which was about the sum found due the plaintiff in the action. The only questions presented for our determination, therefore, are: Was the finding of the court that Carlson & Hunter were not liable as guarantors on the John Wasilk notes sustained by the evidence? Were the findings and conclusions of the court correct in allowing the commissions on the Munson notes by crediting them with the amount that would be due them upon the collection of said notes and deducting therefrom the commission that would be due Carlson & Hunter as commission on the Munson transaction? est or commission, and the party of the second part hereby agrees not to hold the company responsible for any statement or act of such agent while so engaged." The construction placed upon this clause of the contract by the appellant, in our opinion, cannot be sustained, and, under the evidence in this case, Barrett, the traveling agent, could not be considered as the agent of Carlson & Hunter, or as assisting them in making the sale, and that, if he could be so considered, no obligation would be imposed upon Carlson & Hunter to guarantee the notes which were accepted by the agent, Barrett. The plaintiff in this case made no claim for commissions in favor of Carlson & Hunter on the sale made to Wasilk. The notes and securities from Wasilk seem to have been accepted by Barrett, and the only connection that Carlson & Hunter seem to have had with the transaction was that Hunter, under the dictation of Barrett, prepared the application and necessary papers connected therewith. A portion of the deposition of Hunter was introduced in evidence by the plaintiff in rebuttal, in which he testifies as follows: "I know one J. J. Barrett, now residing in Minneapolis, Minn., and knew him during the year 1904. He was then a traveling salesman for the Nichols & Shepard Company, and collected their notes and accounts. During that year we had dealings with one John Wasilk. We took an order from him for a 20 horse power engine. We did not sell him such an engine. engine was not shipped on that order. He bought a Nichols & Shepard Company engine that year from J. J. Barrett. We were notified by the Nichols & Shepard Company that the order we took from John Wasilk had been refused by the company. We were so informed by J. J. Barrett. I did not make settlement with Wasilk for that engine. J. J. Barrett made the settlement. I only know how the machine was settled for from what Barrett told us. I know Barrett got security on Wasilk's property at Grenville. I know that Eugene Carlson, my partner, never had that order in his possession or under his control. J. J. Barrett had no authority whatever to act for the It is contended by the appellant that Bar- firm of Carlson & Hunter in selling the enrett, in taking the application, was acting in gine to John Wasilk, or in taking settleconnection with Carlson & Hunter, and by ment therefor. The firm of Carlson & Huntthe stipulations contained in their appoint- er never gave the Nichols & Shepard Comment as agents was, while acting with them, pany permission to release any security held their agent. The clause in the contract be- by them securing the purchase price of the tween the company and Carlson & Hunter engine sold to John Wasilk." Eugene Carlrelied upon by the defendant as making son testified as follows: "In 1904 I lived at Carlson & Hunter guarantors of the notes Webster, Day county. Was in the impleof Wasilk reads as follows: "It is hereby ment and machine business with F. E. Huntagreed that, should the company furnish any er. The firm was organized in January, one to assist the party of the second part 1904, and went into bankruptcy. I know the in making sales, such person is to be con- Nichols & Shepard Company. We acted as sidered at all times and for any purpose the their local agent in selling their threshing agent of the party of the second part in any machines, engines, and other machinery mansale made by him or them in which the par- ufactured by them. I took an order for an It is contended by the respondent that the Wasilk notes were not, under the terms of their contract with the defendant, guaranteed by Carlson & Hunter, for the reason that the sale made to Wasilk of machinery was made by one Barrett, the traveling agent of the defendant, and therefore they were not liable on those notes as guarantors. We are of the opinion that the court was right in its finding upon those notes as clearly under the evidence their payment was not guaranteed by Carlson & Hunter, and therefore they could not properly be chargeable as guarantors upon these notes. Presumptively the finding of the court was right that Carlson & Hunter were not liable as guarantors of the Wasilk notes, and, unless there was a clear preponderance of evidence against such finding, the same must be sustained. It is disclosed by the evidence that Carlson & Hunter took the application of Wasilk for some farm machinery manufactured by the defendant, and forwarded it to the home office, and that the same was rejected by the company for the reason that the application was not accompanied by a statement of the financial condition of Wasilk. Thereupon the company sent its traveling agent, Barrett, to Webster, and he accepted an application of Wasilk for machinery, and made arrangements with him to ship him the same. The company; but it was not accepted by the company. The company then sent their representative, J. J. Barrett, to see us, and Barrett and I went out to see John Wasilk, and he came into our office at Webster, and Barrett took an order for an engine from John Wasilk, and it was accepted by the company, and Barrett took a settlement for the same engine. We did not send in the order which Barrett took, and never had it in our hands, nor myself nor the firm of Carlson & Hunter ever had any control over said order. The reason the order we sent in was rejected was because we did not get sufficient security. * The order which Barrett took from John Wasilk was filled, and the engine was shipped on that order. I was present at the time John Wasilk settled with the company for that engine. I made the settlement papers out myself, under the direction of J. J. Barrett. At that time J. J. Barrett had no authority to act for Carlson & Hunter in selling said engine to John Wasilk." J. J. Barrett in his testimony makes the following statement: "What I did in that matter was not done by way of assistance of Carlson & Hunter." It would seem quite clear from the testimony, therefore, that the transaction with Wasilk was made by Barrett, and that, under the evidence, Carlson & Hunter could not be legally held as guarantors of the notes given by Wasilk in that transaction, and that the court was therefore right in so finding. The further contention of the appellant that the commissions upon the Munson notes due the firm of Carlson & Hunter should not have been excluded by the findings and conclusions of the court, for the reason that the claim of the plaintiff as to that commission was withdrawn on the trial, is untenable, for the reason that the defendant had pleaded as a defense to the action the guaranty made by Carlson & Hunter upon those two notes, and hence the court was required to find what sum the defendant was entitled to retain on account of these notes under the defendant's answer. The further contention of appellant that the court also erred in holding that the notes should be surrendered up to the plaintiff, as that issue was not raised in the pleadings, is untenable. We are of the opinion that the court committed no error in holding that the defendant was entitled to retain in its hands the amount unpaid on the Munson notes which would be due it under its contract with Carlson & Hunter. The contention of the appellant that the court should have held that the total amount of the Munson notes should have been credited to the defendant, in our view, cannot be sustained. The amount to be credited to the defendant on the Munson notes was the amount to which they would be entitled under their contract, and that, of course, would be the face of the notes, less the commission of Carlson & Hunter. It is quite clear, therefore, that the court was right in adjusting the accounts between the defendant and Carlson & Hunter, by crediting the defendant with only the amount that would actually be coming to that company on account of those notes after deducting Carlson & Hunter's commission. In adjusting the accounts, therefore, the court properly found due the plaintiff the sum for which judgment was entered. But, as will be noticed, in adjusting said account the amount of the Munson notes was charged up against Carlson & Hunter, and credited to the defendant. It was perfectly proper, therefore, for the court, in its judgment, to adjudge that, as Carlson & Hunter had been charged with the amount of those notes belonging to the defendant company, the notes should be surrendered up to the plaintiff. What further interest could the defendant have in the notes? It had been credited with the amount due it on account of the notes, and Carlson & Hunter had been charged with that amount. No possible reason could exist then for the defendant to further retain possession of the notes, and it was therefore perfectly proper in the judgment for the court to award the possession of the notes to the plaintiff, who was entitled to go on and collect the amount due upon the notes from Munson, and, when so collected, of course, that sum will belong to the plaintiff as trustee of the bankrupts. In our opinion, therefore, the judgment of the court below and order denying a new trial should be affirmed, and it is so ordered. MCCOY, J., taking no part in this decision. STATE v. LAPER. (Supreme Court of South Dakota. Oct. 4, 1910.) 1. CRIMINAL LAW (§ 938*) - NEW TRIAL NEWLY DISCOVERED EVIDENCE. The granting of a new trial for newly discovered evidence, which is simply cumulative, the verdict on another trial, will ordinarily be or impeaching, and would not probably change denied. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2306-2317; Dec. Dig. § 938.*] 2. CRIMINAL LAW (§ 939*) - NEW TRIAL NEWLY DISCOVERED EVIDENCE- NECESSITY FOR DILIGENCE. To obtain a new trial for newly discovered evidence, accused must show his exercise of due diligence to procure the evidence at the former trial. [Ed. Note. For other cases, Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § see Criminal 939.*] 3. CRIMINAL LAW (§ 939*) - NEW TRIALNEWLY DISCOVERED EVIDENCE-DILIGENCE. On a prosecution for receiving stolen property, one of the material questions presented was as to the identity of the animal alleged to have been stolen. One person from whom the J. H. Perry and C. H. Barron, for appellant. S. W. Clark, Atty. Gen., and M. Plin Beebe, State's Atty., for the State. animal was alleged to have been stolen testified | stolen, and he appeals from the judgment of that the animal found in accused's possession conviction, and an order denying a new trial. was the one that had been lost or stolen from Reversed, and new trial granted. him on a certain date, and accused testified that he owned the animal who was the dam of the one in controversy, which was a colt raised by him, and had remained in his possession up to the time of the trial, and his testimony as to the ownership was corroborated by several witnesses. On rebuttal, the state introduced testimony of several witnesses tending to corroborate the statements of the person from whom the animal was alleged to have been stolen. Held, that accused was not bound to anticipate that the rebutting testimony would be such as to overcome the testimony introduced by him in support of his ownership of the animal, and was not guilty of such want of diligence in not producing other witnesses as to his ownership as would preclude his obtaining a new trial for such newly discovered evidence. [Ed. Note. For other cases, see Criminal Law. Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.*] 4. CRIMINAL LAW (§ 941*)-NEW TRIAL-CUMULATIVE EVIDENCE. CORSON, J. The defendant, upon an information filed by the state's attorney of Edmunds county, was tried and convicted of a crime of receiving stolen property, knowing it to have been stolen. From the judgment of conviction and order denying a new trial, the defendant has appealed to this court. It is stated, in substance, in the information, that the property alleged to have been received by the defendant knowing it to have been stolen was one sorrel mare with white hind legs and one white fore foot and bald face, stolen by one Henry T. Laper on the 17th day of January, 1906, and that the said defendant on September 25, 1906, had received the same, knowing the same to have been stolen. Numerous errors are assigned on the part of the defendant, among which are alleged errors of the court in denying a new trial on various grounds, and in denying defendant's motion for a new trial on the ground of new In a prosecution for receiving stolen property, accused's testimony as to his ownership of the animal was corroborated by witnesses who testified that they had known the animal alleged to have been stolen in 1906 and received by accused since 1905, that it was the prop erty of accused, and that at various times they had seen the animal in the possession of accused, being used and driven by him. Held, that newly discovered evidence that the animal had been in the possession of accused from the year 1903 as a colt and from 1905 as a two-ly discovered evidence. It is contended by year old, but which did not tend to support the statement of any particular witness who had testified on the trial that at a particular time and place he had seen the animal in the possession of accused prior to January, 1906, but rather that they had seen the animal in accused's possession at other times, not referred to by witnesses who had testified, while tending to establish the same ultimate fact, was not cumulative, precluding a new trial. [Ed. Note. For other cases, see Criminal Law. Cent. Dig. §§ 2328-2330; Dec. Dig. 8 941.*] 5. CRIMINAL LAW (§ 945*) - NEW TRIAL NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE. Where the court can see from the character of the evidence sought to be introduced upon a new trial that it would probably change the result or tend to raise a doubt in the minds of the jury as to a material issue, a new trial should be granted, though, under the technical rules of court, it would ordinarily be denied on the ground that the newly discovered evidence was cumulative. [Ed. Note. For other cases, see Criminal Law. Cent. Dig. §§ 2324-2327, 2336; Dec. Dig. § 945.*] 6. CRIMINAL LAW (§ 938*)-NEW TRIAL. the Attorney General on the part of the state that the motion for a new trial on the ground of errors of law occurring at the trial was not properly presented to the trial court. In the view we take of the case, it will not be necessary to consider or discuss the various points made by the Attorney General, relative to the motion for a new trial, on the ground of errors occurring at the trial, as we shall confine ourselves exclusively to the motion for a new trial upon the ground of newly discovered evidence. On the trial one of the principal questions presented by the evidence was as to the identity of the animal alleged to have been stolen and received by the defendant. It was alleged in the information that the mare stolen. was the property of one Joseph Wentz, and on the trial the defendant offered evidence tending to prove that the animal found in his possession was raised by him from a colt whose dam was owned by him, and which was foaled in the year 1903, and remained on the ranch owned by Henry T. Laper until the spring of 1905, when it was taken by the defendant to his own ranch in Edmunds county, and there kept until the time of the trial in the spring of 1909. The evidence in regard to the identity of the animal stolen or lost by Joseph Wentz and the one found in the possession of the defendant was conflicting, but the jury found by their verdict Circuit Court, Edmunds that the animal alleged to have been stolen from Wentz and found in the possession of George R. Laper was convicted of receiv- the defendant belonged to the said Wentz. Ing stolen property, knowing it to have been The defendant on the trial testified himself, It is not the theory of the law that rules established by courts for promotion of justice and the ending of litigation should be used for the purpose of injustice or in denying to an accused an opportunity to establish his innocence of the crime charged upon a proper showing of newly discovered evidence. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 938.*] Appeal from County. |