would you have demanded the full amount named in Exhibits A end B at the expiration of four and six months? A. We would if he was good for it. If not, we would take our goods back." On the 6th day of December, McMillan sent this telegram to appellants: "Had to mortgage stock. Your goods not included. Don't worry."

I have thus endeavored to collate and fairly state all the evidence bearing upon the question presented, to-wit, the intent and understanding of the parties, and as to their relations, respectively, to the goods In controversy. I think it tends to show an unwillingness on the part of appellants to ship the goods to McMillan, except upon conmission, and an unwillingness on the part of McMillan to so receive them, he so advising appellants, by his letter of September 15th; that, not withstanding his letter, the goods were shipped, both invoices being plainly marked in writing, " On consignment." Sofar as these invoices are inconsistent in their terms, on account of the use of the words "Bought," and "On consignment," and to the extent of their Independent force, if they have any, in tending to show the final agreement under which these goods were held by McMillan, the latter, being written for this particular contract, would prevail over the former, being printed for general use. This rule is too familiar to require the support of authorities. 2 Pars. Cont. (6th Ed.) 516. On and by the first invoice, appellants advised McMillan that Whitman would call on him in November, and talk the matter over. What matter was referred to? It might have been the disagreement as to the terms of shipment. This may not be very material, except as tending to show that, up to that time, the parties had not agreed upon terms. Whitman testifies that when he arrived in Sioux Falls he found all the goods unsold, and the second shipment still in the boxes unopened; that he then made an arrangement with McMillan in regard to the goods, the details of which have already been noticed; and that such arrangement wassatIsfactory to and accepted by McMillan. He testifies that the agreement so accepted by McMillan was in part that he should keep the goods on consignment; that after January 1st he should make payment every 30 days for what goods had been sold; that he should remit the invoice price, and that whatever he sold any goods for in excess should be his commission; that the goods were to remain the property of appellants, subject to be retaken at any time. It is claimed by respondent, and it may be true, that other conditions of this agreement as testified to by Whitman are inconsistent with an agreement to sell on commission. If so, it only increases the difficulty of ascertaining the real intent and understanding of the parties. Subject to the same remark is the answer of appellant Rauber in his crossexamination, to the effect that, if McMillan had sold none of these goods at the expiration of the time limited for settlement, they would have demanded the full amount, if he was good for it; if not, they would have taken their goods back. The

answer sheds little light upon the subject of inquiry, for it seems upon its face not only inconsistent with itself, but equally inconsistent with the commission theory of appellants, and the sale theory of respondent. The first part of the answer indicates Rauber's understanding that, at the expiration of the time limited for settlement, they might demand pay for the goods, whether sold or not; the second part, that the goods were still theirs, and might be retaken, if not paid for. The meaning of McMillan's telegram in regard to the mortgage is not free from doubt: "Had to mortgage stock. Your goods not included. Don't worry." By "Your goods" did he mean, as claimed by respondent, the goods bought of them, or, as claimed by appellants, goods which he understood belonged to them?

Upon the whole it seems to us very plain that the real intent and understanding of the parties to this agreement must be gathered from a variety of sources; some affording direct and definite evidence; others indirect, indefinite, and possibly inconsistent and confusing. It must be determined to some extent, at least, from statements and expressions, the meaning of which seems doubtful and obscure. These expressions must be analyzed and compared, not only with each other, bat with other statements as to the agreement, if there are any, which are more definite and certain. By this means only could the final fact as to what agreement these parties made-its scope and meaning-be intelligently determined. This being our conclusion as to the condition of the evidence, it follows that in our judg ment the question should have been submitted to the jury, with a plain instruction from the court as to what agreement would constitute the transaction a bailment, and what a sale. Of the cases cited in respondent's brief, Fish v. Benedict, 74 N. Y. 613; Bastress v. Chickering, 18 I11. App. 198; and Jenkins v. Eichelberger, 4 Watts, 121,-are inapplicable to this case, so far as the distinct question now presented is concerned, because in each of those cases the agreement upon which the rights of the parties depended was in writ ing, and there was and could be no doubt or question as to its terms, and it was plainly the duty of the court to construe it, and declare whether it constituted the transaction a sale or a bailment. But here the very matter in doubt and dispute is, what did the parties agree to? and to find and determine what that agreement really was, its terms and extent, was a question of fact for the jury, on all the evidence; its force and legal effect a matter of law for the court. The other cases cited by respondent were where grain had been deposited with a warehouseman, and the question there, as here, was: Was it a sale or a bailment? But in those cases the undisputed testimony showed, and it was not questioned, but conceded, that the agreement never contemplated that the specific article which was the subject of the agreement should be retained by the bailee, or purchaser, or that such specific grain should be returned in case of demand, but that other grain of the same

kind and quality might be returned in its place. Thus the very fact which, in the opinion of the court, tested and determined the character of the transaction, was not in doubt or dispute. In these cases, as in those just previously noticed, the terms of the agreement were definite, clear, and unambiguous, and that is the marked and significant distinction between those cases and the one at bar. We think the case, with proper instructions from the court as to what constituted a sale, and what a bailment, should have been submitted to the jury. The judgment of the court below is reversed, and the case remanded. All the judges concurring.

(1 S. D. 279)

HALL V. HARRIS.

(Supreme Court of South Dakota. Oct. 13, 1890.) WRONGFUL ATTACHMENT-EVIDENCE-EXEMPT PROPERTY-NEW TRIAL.

1. On the trial of this action, brought by the defendant in an attachment suit for the value of property claimed by such party as additional exemptions, under the statute, against the sheriff, while such property was held by him under his warrant of attachment, and under an order of the court made on a motion to discharge the attachment, denying the same on the ground, among others, that the debt for which the attachment was issued was incurred for property obtained under false pretenses, said order was admitted in evidence as a bar to the action. Held, that the court committed no error in so admitting said order, and holding it a bar to the action.

2. Further held, that the words in the notice of intention to move for a new trial, that the same would be "made on the minutes of the court and a bill of exceptions," did not render said notice uncertain, and that the court committed no error in refusing to dismiss the motion upon that ground.

(Syllabus by the Court.)

Appeal from district court, Hughes

county.

Charles H. Burke, (Walter C. Fawcett, of counsel,) for appellant. Crawford & De Land, for respondent.

CORSON, P. J. This is an action brought by the plaintiff against the defendant, as sheriff of Hughes county, to recover the value of certain personal property, alleged to have been wrongfully taken and converted by the defendant, claimed by plaintiff as exempt property under the provisions of the statute providing for additional exemptions. The defendant justified his taking and detention of the property under and by virtue of a warrant of attachment issued out of the district court of said Hughes county, in an action wherein William E. Sawyer et al. are plaintiffs, and James Hall (the plaintiff herein) is defendant; and also under and by virtue of a decision and order of the district court made in said action denying defendant's motion to discharge the said attachment. A trial was had in the district court, resulting in a verdict and judgment for the plaintiff. On motion, a new trial was granted in the court below, and a second trial had, resulting in a verdict and judgment for defendant; and from this judgment the plaintiff appeals to this court, for a review, not only of the errors in law alleged to have occurred on the second

trial, but a review also of the order granting a new trial.

The action of Sawyer et al. v. Hall, which we shall hereafter designate as the "attachment suit," was commenced on the 7th day of September, 1886, and the property in controversy in this action was seized under the warrant of attachment issued in that action about the 9th of that month. One of the grounds for the attachment set forth in the affidavit for the same was that the debt on which the attachment suit was brought was incurred for property obtained under false pretenses, and this allegation in the affidavit was recited, in the warrant of attachment, as one of the grounds on which the warrant was issued. Hall, through his agent, took the proper proceedings to obtain out of the property attached his additional exemptions, under the statute, but the sheriff refused, either to have the property appraised or to deliver it up. Hall thereupon gave notice of a motion to discharge the attachment, which was heard by the court and denied, but with leave to renew the motion. Subsequently, in October, 1886, a new motion to vacate, discharge, and dissolve the attachment was given, and the second ground on which the motion was based, as stated therein, was as follows: "That each and every allegation contained in said affidavit, except the allegation of indebtedness therein contained, are false." On this motion, a hearing was had before the court, in which a large mass of evidence, in the form of documentary evidence and affidavits, was presented by the 'respective parties, and the court, after a full consideration of the motion, decided it against the defendant Hall, and on December 10, 1886, made an order in which, after various recitals, is the following: "It is hereby ordered and adjudged that said motion be, and the same is hereby, denied, and said attachment is hereby sustained on the grounds, first, that the defendant has assigned and disposed of his property with intent to defraud his creditors; and on the further ground that the debt herein sued on was incurred for property obtained under false pretenses." Subsequently, to the above-mentioned hearing and order, the plaintiff herein (Hall) again demanded an appraisement, and the setting apart of his additional exemptions, which being refused by the sheriff, he commenced this action, before the issuance of an execution in the attachment suit, and while the sheriff still held the prop erty under his warrant of attachment. On the first trial of this action the court refused to admit in evidence the order of the court of December 10th, a part of which is above given, denying the notion to discharge the attachment; and this refusal was the ground mainly relied on in the motion for a new trial, and the ground upon which the new trial was granted. On the second trial the court not only admitted this order in evidence, but held it conclusive of the fact that the debt, on which the warrant of attachment was issued, was incurred for property obtained under false pretenses, and a bar to plaintiff's action, and directed the jury to render a verdict for the defendant.

Section 5139, Comp. Laws, in relation to exemptions, is as follows: "No exemptions, except the absolute exemptions, shall be allowed any person against an execution or other process issued upon a debt incurred for property obtained under false pretenses." The assignment of errors is as follows: "First. The court below erred in entertaining and in refusing to dismiss defendant's motion for a new trial, inasmuch as the defendant's notice of intention to make said motion failed to specify whether the same would be made upon the minutes of the court, a bill of exceptions, or a statement of the case. Second. The court below erred in allowing defendant's motion for a new trial, inasmuch as the same was allowed upon the ground of error of law occurring at the trial of said action, and excepted to by the party moving for a new trial; and no such error appears from the record. Third. The court below erred in allowing defendant's motion for a new trial, on the ground that there was error of law by the court below in excluding the order made by the Honorable LOUIS K. CHURCH, J., on the 10th day of December, 1886, sustaining the attachment proceedings under which the defendant seized the property in controversy, the court below having correctly decided in excluding said order. Fourth. The court below erred upon the second trial of this action in admitting as evidence the order mentioned in the last assignment. Fifth. The court below erred upon the second trial of said action in holding that the order mentioned in the last two assignments was a conclusive bar to this action, and upon this ground in directing the jury to find a verdict for the defendant. Sixth. That the judgment of the court below should have been for the plaintiff, and against the defendant, according to the law of the land."

On the hearing in the court below of the motion for a new trial, the appellant moved to dismiss the motion, upon the ground that, in the notice of intention to move for a new trial, the moving party specified that the motion would be based "upon the minutes of the court, and upon a bill of exceptions to be thereafter settled in the case," which motion to dismiss was denied. The learned counsel for appellant contend that such a motion was insufficient, and that the moving party must specify whether the motion will be based upon the minutes of the court, or a bill of exceptions, or a statement, and that a conjunctive statement left the appellant in as much doubt as would a disjunctive one. Section 5090, Comp. Laws, provides that "the party intending to move for a new trial must, within twenty days,

serve upon the adverse party a notice of his intention, designating the statutory grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the minutes of the court, or bill of exceptions, or a statement of the case." The learned counHel for the respondent contend that only the first clause relating to the time within which the notice must be given is mandatory, and that the latter clause is directory only, and that the notice given was,

in form, a substantial compliance with the statute. We think the counsel are correct. The appellant had full notice that all the statutory methods of proceeding to obtain a new trial would be relied on, and when respondent elected which of the two methods he would pursue, such an election was an abandonment of the other method specified in his notice. We fail to see how the appellant could in any manner be prejudiced by such notice and election under it. It frequently happens, as in this case, that the notice is given before the bill of exceptions or statement is settled, and the moving party may be uncertain whether or not the bill of exceptions or statement can be settled before the motion for a new trial can be heard. If it cannot, for any reason, be settled before the motion is heard, he may be compelled to rely upon the minutes of the court. If settled, he would, naturally, rely upon his statement, or bill of exceptions, on the hearing. This question, under a similar if not a statute identical with our own, was before the supreme court of California, in Hart v. Kimball, 72 Cal. 284, 13 Pac. Rep. 852, in which the court says: "The respondent contends that the appeal from the order first mentioned should not be considered, for the reason, as he alleges, that the notice of motion for a new trial specified that such motion would be made, not only upon the minutes of the court, but also upon a bill of exceptions and a statement of the case, and that, therefore, the statement upon which the motion was heard by the trial court should have been disregarded, since the moving party relied upon that method of procedure, and did not file any affidavits or use the minutes of the court. We do not concur in this view of the law, for the respondent had full notice that all the statutory methods of procedure to obtain a new trial would be adopted by the appellants; and, when they elected which of such methods they would pursue, such election was their privilege, and did not prejudice, in any way, the rights of the respondent, the other methods being thereby abandoned." The same question was also before the supreme court of Montana in a late case, also under a similar statute, (Gamer v. Glenn, 20 Pac. Rep. 654,) in which the court says: "Paticular stress is laid upon the use of the words, 'option of the moving party,' and the disjunctive word 'or,' connecting the several grounds upon which the motion may be made. We do not think this construction tenable. While the appellant may select any one ground given by the statute, and rely upon it alone, he certainly is not precluded from relying upon two or more, or all of them, if, in his judgment, the necessities of his case require it. And if he sees fit to rely upon one ground, and abandon the others, when he comes to file his motion for a new trial, he can then elect to do so. To notify the respondent that he intends to rely on all of them cannot prejudice his rights in any manner that we can see. If he were to put his notice in the alternative, and thus leave it uncertain which of the grounds he relied on, this would be objectionable." We are cf the

This brings us to a consideration of the main question in this case, and that is whether or not the court erred in granting the new trial, and in holding on the second trial that the order of December 10th was admissible in evidence, and a bar to this suit. All the assignments of error on this branch of the case will be considered together, as they really present but the one question. It is earnestly contended by the learned counsel for the appellant that such an order and decision of the district court, made upon a motion to discharge the attachment, cannot be a bar to this action, because upon the question of plaintiff's additional exemptions, under the law, he had the constitutional right of a jury trial, and that the effect of the decision of the district court in this case would be to deprive him of that right; and, further, that it is only judgments rendered in an action that can have the effect of res adjudicata, and be pleaded in bar to an action. While the appellant would, undoubtedly, have had the right to a jury trial in case he had sought his remedy in a different proceeding, and at the proper time, he could waive this right, either in an action commenced in the proper court or by a proceeding in which he seeks to have an adjudication by the court of the question, without the intervention of a jury. Such, we think, was the case here. Appellant made his motion to vacate the attachment proceedings before the court, and on that motion presented, and had determined, the question as to whether or not the debt for which the attachment was issued" was incurred for property obtained under false pretenses," and the court, having heard all the evidence adduced by the respective parties, and the arguments of counsel, determined that question against the appellant, the defendant in that action. The motion and hearing by the court for the discharge of the attachment was a proceeding authorized by the statute, and the determination of the motion was an adjudication by the court of a matter within its jurisdiction where the duty of hearing and deciding the questions presented by the motion was by law imposed upon the court. By section 5011, Comp. Laws, it is provided that, "in all cases, the defendant

may move to discharge the attachment; if the motion be made upon affidavits on the part of the defendant, ** * butnot otherwise, the plaintiff may oppose the same by affidavits or other proof in addition to the affidavit on which the attachment was granted, and in such case the defendant * * may sustain the motion by affidavits or other proof in rebuttal of the affidavits, or other proof offered and submitted on the part of the plaintiff to approve the motion." It will thus be seen that a full and thorough investigation of the facts is provided for on the hearing of the motion. Affidavits, documentary and oral evidence, may be given on either side. In addition to a full hearing in the court below, an appeal to this court is provided for. In Bank v.

that an order discharging, continuing, refusing, or modifying an attachment is appealable, and that an appeal may be taken from such an order before judgment upon the main issue in the original cause of action. In that case, the court, speaking through Mr. Justice BENNETT, says: "The primary object of the act was to give the right of appeal from all orders granting, refusing, continuing, or modifying a provisional remedy, or setting aside or dismissing a writ of attachment for irregularity. The words 'granting,' 'refusing,' continuing,' or 'modifying,' taken collectively, may embrace, and without doubt were intended to cover, all the proceedings that might be instituted in any provisional remedy; that is, anything which pertains to the granting of an attachment, it being a provisional remedy, or the refusing to grant it, or to any proceeding or order which after its issuance continued its life or existence, or that in any way modified or discharged it." The decision of the court, then, on that motion, being made upon a full hearing of the motion, and from which an appeal could have been taken, had the appellant so desired, should, we think, be held conclusive of the matters adjudicated, upon all parties in that action, at least during its pendency.

What could have been the object the law-makers had in view in specifically providing for this motion to discharge the attachment, if the decision of the motion when made was not to be regarded as an adjudication of the matters submitted to the court, upon the motion? This court had occasion to consider the effect of an appealable order in the case of Weber v. Tschetter, ante, 201, in which the court, speaking through Mr. Justice KELLAM, says: "We think that where an issue of fact is distinctly and formally presented to the court for determination, as a means of fixing the legal rights of the parties, the supporting evidence of both sides duly considered, and from which determination either party may appeal, the decision of the court upon such issue ought to be held conclusive and final, without regard to the form in which such issue is presented, whether by action or motion, the important matter being that the issue be well defined, so as to preclude doubt as to what question was before the court; that it be fully heard and litigated, each side having an opportunity to be heard; and that the court should judicially pass upon and decide it. This being done, the determination as to the facts and rights involved should be final. In Wilson Co. v. McIntosh, (Kan.) 1 Pac. Rep. 572, the court (BREWER, J.) says: 'We think there is a growing disposition to enlarge the scope of the doctrine of res adjudicata, and to place more regard on the substance of the decision than on the form of the proceedings. One thing which indicates this is the increased facility of review in the appellate courts. * *** Now, that the decision of a motion can be preserved in a separate record, and taken up by itself, presupposes a full and careful consideration in both the trial and appel

In

late courts; and, when that is had, it that is had, it would seem that the question thus separately and carefully considered should be finally disposed of, and not be thrown back for further litigation at the mere ca price of either party.' In Mabry v. Henry, 83 N. C. 298, it is said: The principle of res adjudicata does not extend to ordinary motions incidental to the progress of a cause, ・・・ but it does apply to decisions affecting a substantial right subject to review in an appellate court. Dwight v. St. John, 25 N. Y. 203, the order of the court denying a motion to cancel a Judgment entered by confession, being appealable as affecting a substantial right, was held conclusive between the parties as to all matters actually involved and tried. The reasons assigned for investing courts with a discretionary power in rehearing matters decided upon motion, are applicable only to those proceedings from which no redress can be obtained by appeal. Freem. Judgm. § 325" McCullough v. Clark, 41 Cal. 298.

In this case, at the time the action was commenced, the defendant, as sheriff, was holding this property, not only under his warrant of attachment by which he was informed that this property was not exempt, because the debt had been incurred for property obtained under false pretenses, but under the order and decision of the court, out of which his writ had is sued, adjudicating that such was the fact. If an officer cannot be protected under such circumstances there must be a defect in the law; for, being advised both by his warrant of attachment and the decision and order of the court that the property could not be claimed as exempt property, he cer tainly could not have proceeded to have it appraised or deliver it up to the defendant. We think the law is not chargeable with such injustice, and must hold that, in this case, the order of the court protected him. What effect we would give the order had the plaintiff waited until an execution had been issued in the attachment suit and had claimed his exemptions under the execution, we do not here decide, leaving that question to be determ ned when it properly arises. The case of Bennett v. Denny, decided by the supreme court of Minnesota, (33 Minn. 530, 24 N. W. Rep. 193,) and by the supreme court of the United States on writ of error. (128 U. S. 498, 9 Sup. Ct. Rep. 134,) is confidently relied on by the learned counsel for appellant, as sustaining the appellant's view in this case. We think, however, that on a careful examination of that case, it will be found that it is material¡y different from the case at bar, and that the principle upon which it was decided has no application to this case. That was a case where a United States marshal had levied upon property under a writ of attachment issued out of the United States circuit court. The property was claimed by an assignee, under an assignment made under the state laws of Minnesota. In deciding the motion, Justice NELSON, of the United States district court, says: "It is by virtue of this seizure that the marshal holds the property. On this statement of the facts, I shall not decide on this motion who has

the better title and right to the possession of the property taken. The writ

of attachment properly issued in this suit against the debtor, and if the marshal has seized the property which belonged to Bennett, he is certainly liable in an action of trespass for the damages thereby sustained." The question, therefore, of the right of the assignee to the property, as between himself and the marshal, was not adjudicated, and the court did not intend to pass upon or determine that question, but intended to do as it did do,-leave it to be adjudicated in the proper suit bo tween the marshal and assignee. In the case at bar the court does determine and adjudicate the rights of the party to the exemption by determining that the debt for which the property was held was incurred for property obtained under false pretenses, which, as we have seen by section 5139, Comp. Laws, precludes a party from claiming additional exemptions under the statute. The order of the court would be a bar to any new motion to discharge the attachment, and must be equally a bar to a suit brought against the officer while he still holds the property under his warrant of attachment, which the court had refused to discharge, because the property was not exempt property. We are of the opinion, therefore, that the court committed no error in granting the new trial or in holding the order of December 10th a bar to this action. The judg ment must therefore be affirmed, and it is so ordered. All the judges concurring.

(1 S. D. 290)

KEEHL V. SCHALLER. (Supreme Court of South Dakota. Oct. 18, 1890.) APPEAL FROM JUSTICE-TRIAL DE Novo-NOTICE.

Where an appeal is taken from a judg ment in justice court to the district (now circuit) court, the notice of appeal demanding a new trial, the case goes upon the calendar for trial as an original action, subject, so far as the trial is concerned, to the provisions of the Code of Civil Procedure; and it is error for the trial court to dismiss the appeal for failure to prosecute except upon notice, as provided in section 6136, Comp. Laws. Following Myers v. Mitchell, ante, 245. (Syllabus by the Court.)

Appeal from district court, Beadle coun ty; JAMES SPENCER, Judge.

Norton D. Walling, for appellant. Hen ry C. Hinckley, for respondent.

KELLAM, J. This case, originally tried in justice court, was appealed to the district court of Beadle county, upon ques tions of both law and fact, and a new trial demanded. When the case was reached and called upon the trial calendar of said court, the appellant asked to try the case upon questions of law only, which was refused by the court. Appellant then asked to have the case passed until the following day, which was also denied, and the court then and there, without other or further notice, made and entered an order dismissing the appeal, and "affirming the judgment of the lower court." Afterwards appellant moved the court to reinstate said appeal upon the calendar, which motion the court granted, upon condition that appellant pay certain