(dissenting).
The date the cause of action arose is a question of fact and it was reversible error for the trial court to refuse to properly instruct the jury thereon. Ryken v. Blunter, 307 N.W.2d 865, 869 (S.D.1981).
The majority opinion is correct in stating that “[a] trial court should present only those instructions which are supported by competent evidence in the record.” Kallis v. Beers, 375 N.W.2d 642, 644 (S.D.1985). However, the majority errs in its application of that principle to this case. The record here clearly contains testimony from the Schelskes that they expected to be paid on the day of delivery or within the following month. Therefore, this record supports the proposed instruction.
The majority also errs when it states, “We do not believe the jury’s verdict would have been different had the Cooperative’s proposed instruction been given.” This is not the test, and it is for the jury to decide factual questions, not the trial court or this court. “This Court cannot be the thirteenth juror.” Malloy v. Commonwealth Highland Theatres, Inc., 375 N.W.2d 631, 635 (S.D.1985). The question is not the “existence or nonexistence of a contract,” it is the date the cause of action arose under the contract. Reasonable minds could differ and it was a jury question under proper instructions.
MILLER, C.J., joins this dissent.