¶1(dissenting, GAT-BS, J-, concurring therein). I cannot concur- in the view that the trial court -erred in giving the instruction referred to in the majority opinion as to the cancellation -of the contract. The evidence quoted in the majority opinion, I think, makes it plain that the only thought in the minds of the parties was that the P. S. Wick Company might possibly choose to exercise its right to cancel the contract, which it never did. If Ridenour had “created a new dealer here,” as Root says he threatened to do, there might have been something on which to hang the theory of an “abandonment of the contract,” but he never attempted to, nor did the company, create a new dealer to take Root’s place. It must be remembered that under the contract Ridenour was Root’s salesman — not the company’s employee — and was working on a commission which was paid by Root. And at the very time of the row between Root and Ridenour the undisputed evidence shows that Root told Ridenour that if-there was any cancellation of the contract, “the company would have to do it.” And after this to the end of the dealings involved in tliis case the business ran along just as it had before the trouble. The trouble between Root and Ridenour arose over the fact that Ridenour was selling only the Wick pianos, and was in the habit of “knocking” other lines handled by Root. There was no trouble directly between Root and the company, although Root had complained to them that the salesman he had employed at their suggestion had been injuring his trade in other lines of pianos. It is perfectly plain that what the Wick Company wanted was to utilize the business standing and advertising facilities of Root as a dealer in- that trade territory, and there is not a scrap of evidence that the company ever thought of abandoning the advantages which they had gained through the contract. The Wick Company got what *119it bargained for, and to permit it to escape payment under some imaginary theory of abandonment would be little short of a mis-carriag-e.of justice.
36 S.D. 111
Karsten v. Root
Decided August 25, 1915
South Dakota Supreme Court · decided 1915-08-25
H|on. Alva E. Taylor, Judge. Action by A. C. Karsten against D. O. Root, to recover for purchase price of pianos sold by plaintiff’s assignor to defendant; defendant counterclaiming for profits on certain sales made by said assignor. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.
Cited by 2 later decisions — most recently January 1926
2 state decisions
Good law ✅— No negative treatment on recordhow we know
Reversed · Decided 1915-08-25
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