23 S.D. 215 | S.D. | 1909
This cause comes before the court upon rehearing; the former opinion of this court being found in 21 S. D. 108, 110 N. W. 84, by which opinion the lower court was reversed and a new trial granted.
To illustrate this situation we will suppose that A. owed B. and had given to B. a chattel mortgage upon a horse to secure the indebtedness, and that thereafter A., being desirous of keeping the-horse, should approach B. and say to him: “I will turn over to you two cows the value of which you may apply upon the indebtedness, providing you will release from- the mortgage the horse.” B. agrees thereto, but at that time this agreement was not
The former opinion of this court is affirmed, and the judgment of the lower court and order denying a new trial are reversed.