-- ACTS OF with the right to enforce the security that 3. PRINCIPAL AND AGENT 24- stances is in the nature of an admission of their obligation to make the warranty good. If it was a holder in due course, it was a holder in due course before the efforts made to collect and before it undertook to make good on the warranty. A holder in due course of negotiable paper is not ordinarily concerned about collateral arrangements between the payee and the maker, and the fact that the M. Rumely Company concerned itself to the extent that it did in this case is to our minds strong evidence that it considered itself under obligation to the defendants. When this admission is considered in connection with the selling arrangement between the M. Rumely Company and the Rumely Products Company, according to which the M. Rumely Company was to receive payment in notes taken by the Rumely Products Company, and also in connection with the fact that the Rumely Products Company was a selling agent for the "Rumely Line," the "Advance Line," and the "GaarScott Line," as shown on the note in suit, it is only reasonable to infer that the M. Rume ly Company was apprised of the character of the selling contract that the Rumely Products Company customarily used. etc. Appeal from Circuit Court, Davison Coun Action by the Barnard-Giles-Moses Company against W. F. Christy. Judgment dismissing the complaint and order denying motion for new trial, and plaintiff appeals. Re versed. Lauritz Miller, of Mitchell, for appellant. H. G. Giddings, of Mitchell, for respondent. POLLEY, J. This action was brought for the recovery of the purchase price of a milking machine, a cream separator, and a gasoline engine alleged to have been sold to defendant by plaintiff. As a defense defendant pleaded the statute of frauds, and also alleged that the machinery was delivered to defendant on 30 days' trial, at the end of which time defendant was to purchase said machinery if it proved satisfactory in every way, but that, if it did not prove satisfactory, he was not to purchase it. He then alleged that, upon a 30 days' trial, it did not prove satisfactory, and he refused to make such purchase. At the close of plaintiff's testimony defendant moved for a directed verdict, upon the grounds: First, that it appears from the evidence that, if any contract for the sale was ever made, the machinery involved was to be installed ready for use, and that it appears from the evidence that the cream separator had not been installed, and that there was no evidence to show that plaintiff had been excused or prevented by defendant from installing the same; and, second, that the contract between plaintiff and defendant was a mere oral contract for the sale of personal property of the value of more than $50, and that no part of the property sold had ever [3] The foregoing answers also the contention that the plaintiffs failed to comply with conditions precedent, to the enforcement of the warranty, such as the giving of notice, These conditions were for the benefit of the warrantor or its assignees, and could, of course, be waived. There was ample evidence that they were waived in this case. The petition for rehearing is denied. BRUCE, C. J., and CHRISTIANSON, J., been accepted by defendant, and that no part adhere to their dissent. of the purchase price had ever been paid. This motion was granted, and judgment dismissing plaintiff's complaint on the merits was, entered. From this judgment and an BARNARD-GILES-MOSES CO. v. CHRIS-order denying a motion for a new trial, plain TY. (No. 4341.) (Supreme Court of South Dakota. Sept. 3, 1918.) 1. FRAUDS, STATUTE OF 159-ORAL CONTRACTS OF SALE-ACCEPTANCE OF GOODSQUESTIONS FOR JURY. Evidence held to present jury question whether machinery of the value of $335 sold under oral contract was accepted so as to remove the transaction from the statute of frauds. 2. EVIDENCE 241(1) STATEMENTS AGENT. OF If a third person acted for defendant in a transaction involving the sale and setting up of farm machinery, his statements were binding on defendant. tiff appeals. The contract, as stated by defendant in his brief, was as follows: "The defendant, in person, called at plaintiff's place of business and orally requested plaintiff to install upon his farm a gasoline engine, milking machine, and cream separator, which plaintiff orally promised to do, the talk being that, when the machinery was installed, defendant would pay therefor the sum of $335. The conversation between the parties contemplated the installation and subsequent purchase of three machines as one transaction and for one price." The evidence shows that defendant went to plaintiff's place of business, and, after looking over various machines, made a selec For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tion, and told a member of plaintiff's firming a place for the separator and permitting to "put it in." By this he meant that plaintiff was to set up and install the said machinery where it was to be used on defendant's farm. On the following day defendant sent one Hanson (who was employed by defendant as foreman and general manager of defendant's farm) with a team and wagon to haul said machinery out to defendant's farm, and a member of plaintiff's company went out to said farm, and, under the directions of said Hanson, installed the gasoline engine and milking machine, but no place had been prepared for the cream separator, and, when it was unloaded from the wagon, Hanson said: "We will just set the separator off here. We are selling the milk in town, and we won't have any use for it until after the expiration of our contract with the creamery, and we will set it off here, and I will take care of it." plaintiff to set it up as agreed upon. [2, 3] During the trial plaintiff offered to prove certain transactions and conversations that took place with the said Hanson other than those above set out. This testimony was rejected by the court on the ground that it was irrelevant, incompetent, hearsay, and not It does not appear that any place was ever binding on the defendant. This testimony prepared for the separator, nor was plaintiff should have been received. There was eviever notified that defendant was ready to dence tending to show that Hanson was acting have it set up. It also appears from the as agent for defendant throughout the transevidence that defendant used the milking action, and, if such was the case, then evimachine, and no complaint was ever made dence of statements made by him at the time that it was not in all respects as represented, of and in connection with his agency was comnor that it did not do the work it was intend-petent and binding on the defendant. The ed to do. It does not appear how long the machine had been used, when defendant, without giving any reason for changing his mind, notified plaintiff that he did not want it, and for plaintiff to take it out. The only particular in which plaintiff did not literally comply with the contract was in its failure to set up the cream separator, but this was wholly the fault of defendant in not prepar question of agency was one of fact that should have been submitted to the jury, with an instruction that, if such agency existed, Hanson's declarations were binding on the defendant, but that, if he were not such agent, then such declarations should be disregarded. The judgment and order appealed from are reversed. An information which charged that defendant obtained property "with knowledge" that pretenses were in fact false was a sufficient allegation that defendant "designedly" obtained the property through false pretenses under Pen. Code, § 645. 3. FALSE PRETENSES 12-LARCENY 14(1) DISTINGUISHED - "OBTAINING PROPERTY UNDER FALSE PRETENSES." Obtaining property under false pretenses within Pen. Code, § 645, consists in obtaining possession by fraud, where owner intends to part with title, as well as possession, whereas "larceny" by fraud consists in fraudulently obtaining possession with intent to convert, where owner. intends to part with possession only and not with title. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, False Pretense; Larceny.] 4. CRIMINAL LAW 968(1)-MOTION IN ARBEST OF JUDGMENT-EXCESSIVE PUNISHMENT. In a criminal case, question whether punishment was excessive or not cannot be brought before court by means of a motion in arrest of judgment. Appeal from Circuit Court, Davison County; Frank B. Smith, Judge. Joseph Paul was convicted of obtaining property under false pretenses, and he appeals. Affirmed. Charles F. Tym, of Mitchell, and Porter & Grantham, of Aberdeen, for appellant. P. A. Zollman, of Mitchell, and C. C. Caldwell, of Sioux Falls, for the State. McCOY, J. Appellant was convicted of the criminal offense of obtaining property under false pretenses, and brings the cause before this court on appeal. After conviction the appellant made motion in arrest of judgment on the ground that the information does not describe or state a public offense. The information in substance alleged that Joseph Paul, the appellant, on the 25th day of October, 1917, in the county of Davison and state of South Dakota, did willfully, unlawfully, and feloniously, with intent to cheat and defraud one Miller, obtain from one Stahl, at the request of Miller, the said Stahl then and there being indebted to said Miller, by false and fraudulent pretenses, a check drawn by said Stahl upon the Mitchell National Bank of Mitchell, S. D., in favor of said Paul, for the sum of $12 and of the value of $12, in which said bank at said time the said Stahl had sufficient money to pay said check, and that the said sum of $12 lawful money of the United States, the property of said Miller of the value of $12, was thereafter and before the beginning of this proceeding paid by said bank upon said check to the said Paul, or his assigns, which check and property were obtained by false and fraudulent pretenses as follows: That at the said time and place the said Paul exhibited and showed to the said Miller a watch which he offered to sell to said Miller, and then and there falsely and fraudulently stated and represented that said watch was an Elgin watch, manufactured by the Elgin National Watch Company of Elgin, Ill., and that the case of said watch was guaranteed by said Elgin National Watch Company to be a gold-filled case, and to wear 25 years, that said watch was worth $12, and that said Paul had sold to the jeweler Woelfel, of Mitchell, $1,200 worth of the same kind of watches, at that price, that the works in said watch contained 21 jewels, all of which statements were believed and relied upon by said Miller, who was deceived thereby, but which statements were false and untrue, and known to be false and untrue by said Paul at said time, that said watch was not an Elgin watch, and was not made by the Elgin Watch Company of Elgin, Ill., or any other Elgin Company of Elgin, Ill., and was not of the value of $12, or any other amount to exceed $3, that said works of said watch did not contain 21 jewels, or any other amount of jewels, and said case was not gold-filled, and that the said Paul never sold to said Woelfel $1,200 worth of said watches or any other amount; that said case and works are not guaranteed by the Elgin Watch Company; and that, induced by said false and fraudulent representations, the said Miller purchased said watch of said Paul, and the same was delivered to him by said Paul, and he paid said Paul therefor with the check of said Stahl drawn on said bank, and of the value of $12 as hereinabove set forth; all of which false and fraudulent acts of said Paul were contrary to the form of the statute in such case made and provided. [1] We are of the view that this information, although not as artistically drawn as it might have been, and although it contains much unnecessary evidentiary matter, nevertheless does contain a substantial statement of all the elements necessary to describe and constitute the offense of obtaining property by false and fraudulent pretenses under section 645, Penal Code. As applicable in this case, the substance of the provisions of this section of our criminal law is that "every person who, with intent to cheat or defraud another, designedly, by * * any For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] It is urged by appellant that the omission of the word "designedly" from this information is fatal. We are of the view, however, that the allegations of the information that this act was done willfully, unlawfully, and feloniously, with intent to cheat and defraud, and with knowledge on the part of said appellant that such alleged false pre tenses were in fact false, sufficiently satisfies the rule that the substance of a criminal statute is all that is necessary to be stated in an information or indictment in describing the offense of which the defendant is charged, in other words, that it is not necessary to use the exact language of the statute in charging an offense. The case of State v. Halida, 28 W. Va. 499, is directly in point. In that case the court said: "The pretense could not be knowingly false without at the same time being designedly false." [3] Appellant also contends that if the information states any offense at all it is that of larceny by fraud. The line of demarcation between larceny by fraud and the obtaining of property by false pretenses is very closely drawn, and, as some courts have said, is more or less technical. In some jurisdictions the obtaining of property by false pretenses is denominated and prosecuted as larceny, while in the criminal law of this state we find two offenses separately defined. In 11 Ruling Case Law, p. 828, it is said that: "The distinction between the crime of obtaining money or goods by false pretenses and that of larceny rests in the intention with which the owner parts with possession. Thus, if possession is obtained by fraud, and the owner intends to part with his title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which it is acquired are such as in law are false pretenses. But if possession is fraudulently obtained with present intent on the part of the person obtaining it to convert the property to his own use, and the owner intends to part with his possession merely, and not with his title, the offense is larceny.' We are of the view that this is the very distinction that exists between the two offenses under the criminal law of this state, and, applying this rule of distinction, the allegations of the information clearly constitute the offense of obtaining property by false pretenses. It is also urged by appellant that it is uncertain whether the information alleges that appellant obtained a check for $12, or $12 in money, by means of said alleged false pretenses, and also that it does not appear that appellant ever actually received any money upon said check. We are of the view that the allegations of the information charge appellant with having obtained a check by means of false pretenses, and that the allegations in regard to the said Stahl, the drawer of said check, having said money in said bank, and that said money was thereafter paid to ap pellant, or his assigns, by said bank, by virtue of said check, was evidentiary matter intended to show the validity of said check. Some courts in such cases hold to the rule that a check so alleged to have been obtained must be shown to be a valid check, and that there was money in the bank from which the same would or could have been paid. [4] Appellant also urges that if he had been prosecuted for larceny, the sentence or punishment would and could not have been that which has been inflicted. We are of the view that the question of punishment, or whether the same was excessive or not, was not, and could not have been, a matter material or proper to be brought before the lower court, or this court, by means of a motion in arrest of judgment. Finding no error in the record, the judgment appealed from is affirmed. Sept. 3, VENNER v. OLSON et al. (No. 4361.) (Supreme Court of South Dakota. 1918.) WATERS AND WATER COURSES 162–LAKE -DRAINAGE. Owner of land partly covered by meandered der Laws 1909, c. 102, § 11, put a drain through lake, a natural drainage basin, could not, una natural barrier to a channel on his own land and flood another's land; his only remedy being under the Drainage Law. Appeal from Circuit Court, Lake County; L. L. Fleeger, Judge. Action for injunction by P. M. Venner against Peter Olson and another. Judgment for defendants, and from the judgment and from an order denying a new trial, plaintiff appeals. Reversed, with directions. Ira F. Blewitt, of Madison, for appellant. D. D. Holdridge & Son and Farmer & Farmer, all of Madison, for respondents. "That there is a natural barrier or ridge on the south of said Wooley Lake, so that, so far as the record discloses, no water has overflowed from said lake at any time." The evidence tended to show without dispute that the bottom of the lake was comparatively level; that the bank on the south and west was from 8.4 feet to 15 feet or more above the lake bed; that at the northeast side the bank was broken by a valley entering from the north; and that the lake was a drainage basin for about two sections of land. The attached map discloses the situation. In the year 1912 defendants, acting in accordance with their idea of the effect of section 11, c. 102, Laws 1909, constructed a tile drain wholly on their own land through Wooley Lake and also approximately along the line A B. The engineer testified: "The level at the lowest point in the outlet where the tile closes shown as the point marked A,' there was no indication of any depression or well-defined bank or channel of the smooth upland," and that the point "B" was approximately eight feet below the level of the lake bed. The shaded portions south of the section line between sections 14 and 23, aggregating according to the testimony of the engineer 33.1 acres, are claimed by plaintiff to be damaged by the construction of the tile drain and to be unfit for cultivation. The trial court |