4 S.D. 312 | S.D. | 1893
This was an action to recover the principal and interest claimed to be due on a--promissory note executed by the respondent and one Kellogg to the plaintiff. The defendant Kellogg did not answer, and the respondent served a separate answer, in which he set up in substance, as a defense, that the note in controversy was -the renewal of anote executed by himself and said Kellogg to H. S. Hall, and that the only consideration for said note was an agreement executed by said Hall, of which the following is a copy: “Rapid City, Dakota, December 30, 1885. Received of Frank J. Washabaugh the sum of five hundred dollars cash, and his promissory nóte for the sum of five hundred dollars, bearing even date herewith, and drawing interest at the rate of ten per cent per annum, which said cash and note are full payment for a, 1-16 interest in and to the southwest i of section 25, township 2 north, range 7 east, B. H. M., provided Herbert S. Hall, to whom the cash is paid and the note is delivered, shall perfect title to same above-described lands in himself within sixty days from the date hereof; otherwise to be refunded and returned to the said F. J. Washabaugh. H. S. Hall.” That said Hall has failed and neglected to obtain a good title to the property described in the said contract, and to convey the same to the respondent. That demand has been duly made upon said Hall for the performance of the contract on his part, and that he has neglected and refused to perform the same. That said Hall was, at the time of the execution of said original note and contract, cashier of said plaintiff bank, and was such cashier when .the renewal note was executed, and that he transacted the business as such cashier in taking the renewal note sued on in this action, and that, by reason thereof, the said bank had full notice of all the facts relating to the execution of said; note and contract. A trial was had before a jury, and a verdict in favor of the respondent was directed by the court. A motion for a new .trial was made and denied, and judgment was thereupon entered in
The record discloses the fact that the original note was executed to said H. S. Hall in consideration of the stipulations in the agreement executed by him; that the said original note was -transferred to the bank by Hall, indorsed by him; and that, as such cashier, he procured the respondent to execute the renewal note in the name of the bank as payee, and that he, as such cashier, .surrendered up the original note held by the bank. It further appears that 80 acres of the land described in the contract was patented by the United States to one J. Carlos .Stevens, an orphan minor of Silas B. Stevens, deceased, and that the only title that Hall had to .the said 80 acres was by deed from the guardian of said minor, by her attorney in fact, and which respondent claims was insufficient as a deed of conveyance of said minor’s interest, and was made without the authority of any court having jurisdiction over the estate of said minor. A large number of errors are assigned, but, as the counsel for the appellant have slated in their brief the points upon which they rely for a reversal, it will not be necessary to set out in full the errors assigned.
1. The learned counsel for the appellant contend that when the respondent and Kellogg executed the renewal note to the plaintiff, and obtained from the plaintiff an .extension of time aad a surrender of the original note, indorsed by Hall, they received a valid consideration for the renewal note, without regard to any.equities between Hall and the respondent on the original note.. Possibly this would be true where ,a new note was given by a third party upon the surrender of an existing note, and there is no question as to the nature of the transaction between the original parties, notice, etc. Such was the case of Wilton v. Eaton, 127 Mass. 174, cited by counsel for appellant. • In that case defendant’s intestate had executed a note to the plaintiff, and the defendant had taken it up, and given a new note executed by herself. It was held that the surrender
In the case at bar all the facts pertaining to the contract with respondent, being known to the cashier, were in law known to the bank, and hence the question before us must be considered precisely as it would be if the renewal note had been made to Hall, instead of to the bank. The bank is not an innocent payee of the renewal note without notice, 'and stands in no better position than Hall himself would have stood if the renewal note had been made to him. If, as claimed by counsel for respondent. Hall did not have the title to one-half of the tract described in the contract to convey, we are of the opinion that he could not have recovered upon the renewal note had it been made to him as payee, and, for the reasons stated,, the
2. Itds contended by counsel for the respondent that the plaintiff and appellant, occupying the same position as Hall, cannot recover upon the note unless Hall has performed his contract, or has “a title reasonably free from doubt” to convey and in fact had offered to so convey;- in other words,' that the action upon the note cannot be maintained unless an action to compel specific performance by Hall could be enforced. We think the counsel are right in their contention. It cannot consistently be claimed that Hall, without conveying- or having the title to convey, could -recover the consideration for the land agreed to be conveyed: On the contrary, he agreed, if he could not make good the title, to return the note to the respondent, and- refund the money paid. Time is not made the essence of the contract, and the renewal .of the:: note had - the effect; un
3. But the appellant contends that Hall did have a good title to the whole tract, and that under the contract and the law the respondent was bound to accept a deed from Hall for the interest contracted to be conveyed. Hall’s title to the 80 acres in controversy was, however, fully considered by this court in the case of Wasbabaugh v. Hall, 56 N. W. Rep. 82, and was held to be invalid. A further discussion of the question is therefore unnecessary at this time.
4. The action in this case, as we have seen, was commenced against the respondent and one Helmont S. Kellogg, but Kellogg did not appear in the action or serve an answer. The respondent, as we have seen, answered, and a trial was had, and a verdict and judgment rendered in his favor, without any reference to Kellogg, his codefendant. Counsel for appellant now insist that this was an irregularity that entitles him to a reversal of this judgment. But, under the reform system of practice in force in this state, we think the judgment was regular and proper. The note sued on was a joint and several note, and, as the respondent was the only one who appeared in the action and answered, he was the only defendant as to whom there were any issues to try. As Kellogg had not appeared, plaintiff could have taken judgment against him before the trial of the issues raised by the respondent by his answer, or subsequently, as the respondent answered separately, and it was immaterial to him what proceedings were taken as to his codefendant, Kellogg. The theory of the code seems to be that, in actions upon joint and several obligations, the court is authorized to proceed in entering judgment in such manner as the nature of
5. It is also contended by counsel for appellant that- the learned court below erred in not admitting evidence to show that Hall was acting as the agent of the respondent and Kellogg in the purchase of the real estate and disbursement of the $500 cash paid, mentioned in the contract with the respondent. Such evidence would have tended to change and vary the terms of the written contract. While an independant contract, made upon an entirely new consideration, may, under certain circumstances, be admissible, the rule that parol evidence to change or vary the terms of a written contract itself is inadmissible is well settled. The general rule requires the rejection of parol evidence to vary or take away obligations entered into by the parties, and by them reduced to writing. Chapin v. Dobson, 78
Our conclusions are that the judgment of the circuit court must be affirmed, and it is so ordered, all the judges concurring.