5 S.D. 53 | S.D. | 1894
Respondent brought this action against appellant, alleging in his complaint that in April, 1891, the parties contracted with each other that respondent should serve appellant as an attorney for the term of one year, in consideration of which appellant undertook to pay respondent $500 in cash, and guarantied him a further income of $2,000; that respondent performed on his part for the period óf seven months, when, without fault on his part, appellant prevented further performance; that by the terms of said contract there was due respondent thereon at the commencement of this action the sum of $949. The answer admitted the facts so alleged, but stated as and for an affirmative defense that respondent verbally agreed to accept, and the appellant to give, in lieu of said sum of money mentioned in the complaint, and in payment thereof, certain jots in the town of Hot Springs, in Fall River county, 5. D.; but appellant did not execute and deliver a dted thereof,
Prior to the argument; respondent moved to dismiss this appeal, for the reason that the judgment so entered was not made or rendered by the court, but by the judge, and was not the subject of an appeal. The abstract does not set out the judgment in form, but it states: “And on October 29, 1892, the same [referring to the demurrer;] was submitted to the court, and on October 31, 1882, the court made the following ruling thereon and order: That said demurrer be sustained, and, defendants having elected to stand on their answer, it is ordered that plaintiff have judgment as prayed in the complaint; and on October 31, 1892, the court rendered the following judgment and order:” The respondent filed no abstract contradicting these facts, and it must be held, for the purposes of this motion, as true that the court sustained the demurrer, and gave and rendered the judgment. We have so often announced and adhered to the rule that an uncontradicted abstract will be treated as true, and constitute the record upon which the case will be heard in this court, that it seems supererogatory to cite cases. See Noyes v. Lane (S. D.) 48 N. W. 322; Irrigation Co. v. Schone (S. D.) 50 N. W. 356. The motion to dismiss is denied.
The principal question presented by the demurrer is, does the fact that the appellant verbally agreed to give, and respondent thus agreed to accept, the lots described in payment of .the claim, constitute a defense to the action? Such an agreement, to-wit, a verbal agreement for the purpose named, is by