8 S.D. 81 | S.D. | 1895
The material facts upon which plaintiff bases his cause, and right to recover upon a cértain undertaking of the defendant Edmison, which will presently be noticed, are in effect stated in the complaint, as follows: On the 30th day of September, 1885, plaintiff and one Weston mortgaged certain farm lands and city property to the assignor of defendant Reitsch, to secure a note for $3,000, due January 1, 1891; the title to the city property being at the time in plaintiff and said Weston, and so remaining until September, 1887, when Weston conveyed his interest therein to plaintiff, who assumed and agreed to pay the mortgage indebtedness of $3,000. On the 20th day of April; 1889, plaintiff, in consideration of $4^,000, sold and conveyed said city property to the defendant Edmison, who assumed in the deed, as a part consideration therefor, the above-mentioned incumbrance, as follows: “Except mortgage
It is urged that the contract before us is one of indemnity, and that, respondent being a mere surety, cannot recover until he has actually sustained injury by reason of a breach thereof, but our view of the transaction leads to a different conclusion. For the purpose of discharging the lien upon farm lands owned by respondent, and as a part consideration for the city property purchased on the 20th day of April, 1889, appellant agreed to pay, within a year from that date, the note for $3,000, and to procure a release of the mortgage by which the same was secured, and in case the owner of Said mortgage should refuse to accept the money at the time specified, and before the maturity of the note, he agreed to obtain a release of the property still owned by respondent from the lien of said mortgage. This part of the contract he has failed to perform, and the mortgage indebtedness, although long past due, has not been paid. To say that respondent must first satisfy the debt which appellant agreed to pay, or defer his suit until his property has been sold in satisfaction thereof, would- require an unwarranted construction of the covenant, a perversion of the language used, and a gross violation of the plainly-expressed intention of the parties. If respondent stood in the position of a mere surety, and the contract was in its character simply indemnifying, a complaint thprpop, showing no injury to plaintiff, would doubtless, accord