26 S.D. 360 | S.D. | 1910
Appeal from the circuit court of Grant county. Action on a promissory note, the complaint alleging that on or about August 7, 1906, the defendants, Hoff and Filbert, for value received, executed and delivered to the plaintiff their promissory note, by which they agreed to pay plaintiff the sum of $800 on the 1st day of January, 1909. The defendant Hoff made default. The defendant Filbert answered, admitting'the execution of the note, and alleging that the same w'as given on a sale of certain machinery to his codefendant, Hoff, while this defendant was acting as agent for the plaintiff. The answer sets out in full the written agency contract, which is very lengthy and contains nothing material to the questions involved on this appeal, except that on sales from , the home office in the agent’s territory the agent is entitled to- his commission, provided he attends to starting and settling for machinery so sold. The answer pleads in full the order given by the defendant Hoff upon which the machinery was purchased, ■the only material portion of which relates to the purchase price of the property and the amount and conditions of payment, in which the purchaser agrees to pay to the order of Frick Company for said machinery the sum of $2,400, in three promissory notes for $800 each, due respectively, January 1, 1907, 1908, and 1909. This order was signed by William Hoff. Upon the order-is indorsed the following guaranty: “For value received the undersigned hereby guarantees that the purchaser will settle for the machinery herein ordered, according to the terms of this order, and also that the purchase price of same, or the notes to be given ■therefor, whether varied or not from the terms herein, will be paid at maturity. W. F. Filbert [Seal] will guarantee the amount of $800.00.” The answer further alleges that, at the time of the delivery of the property to him, the purchaser, Hoff, executed and delivered to the plaintiff three promissory notes mentioned in the. order, one of which is the note sued upon; that all three notes so
Appellant assigns as error the instruction directing a verdict, and certain rulings on evidence, which are not referred to in the brief, and need not be noticed. An examination of the evidence, therefore,’ becomes necessary. On the trial plaintiff offered in evidence the deposition of one Deardorf, who testified that he was assistant secretary and sales manager of the Frick Company since 1905; that in July, 1906, the plaintiff had a credit committee composed of certain persons named whose duty it was to pass upon orders and determine the sufficiency of security before acceptance of orders; that in July, 1906, an order was received from Mr, Hoff and acted upon by this committee, such order being accepted ; that at the time the order was accepted the committee had before it the order, together with the indorsement thereon, signed by W. F. Filbert, to guarantee the amount of $800, and a sales memorandum, signed by Filbert, giving the names of the purchaser and surety as “Wm. Hoff, Watertown, S. D., W. F. Filbert, Twin Brooks, S. D., to the amount of $800.00, as security”; and that such order was accepted for the reason -that such security was deemed adequate. The note in suit was offered and received in evidence without objection. It is admitted that no part of the note has been paid. Thereupon the plaintiff rested its case.
The defendant Filbert, sworn as a witness, testified that he first saw the note in suit about the 12th of August, 1906, when it
The only issue raised by the pleadings, it will be observed, is whether there was a sufficient consideration for the nóte which appellant admits he signed. Under this defense the burden of showing that there was no consideration for the note rests upon defendant; the execution of the note being admitted. Subsections 2 and 3 of section 1232, Civ. Code, provide: “(2) A written instrument is presumptive evidence of a consideration. (3) The burden of showing a want of consideration sufficient to support an instrument, lies with the party seeking to invalidate or avoid it.” Hermiston v. Green, 11 S. D. 81, 75 N. W. 819; Western Twine Co. v. Wright, 11 S. D. 521, 78 N. W. 942, 44 L. R. A. 438; Smith v. Gale, 13. S. D. 162, 82 N. W. 385; Fraley v. Bentley, 1 Dak. 25, 46 N. W. 506; Gira v. Harris, 14 S. D. 537, 86 N. W. 624.
It may be conceded that when a promissory note has been delivered to the payee, and the only consideration therefor is one
Appellant attempted to claim on the trial that his agreement to guarantee $800 referred to the first of the three notes. But no such allegation is made in the answer, nor is it alleged or shown by the evidence that the other notes have been paid. Such contention cannot be -considered upon this appeal. The written indorsement on the order signed by appellant guaranteeing that the purchaser would settle for the machinery and pay the purchase price, or the notes to be given therefor, at maturity, was an existing legal obligation resting on appellant at the time he signed the note in suit. Under -the provisions of Civ. Code, § 1225, such an
Appellant’s further contention that the notes given by Hoff were delivered to and accepted by the plaintiff in full settlement on the sale is not sustained by the record. The order of Hoff was taken by one Reynolds, a mere traveling salesman of plaintiff, in defendant’s agency territory, and was reported to defendant Filbert and accepted or adopted by him, and he thereby became entitled to. the commission thereon according to the terms of his agency contract. There is no evidence in the record tending to show that Reynolds, a traveling salesman of plaintiff, had any authority to accept orders for machinery, or-to accept settlements on sales, and the contrary is shown by the record, in that the agency contract shows that no such authority existed, and the order shows on its face that it was in fact accepted at the home office by J. H. Deardorf, assistant secretary, and that the settlement, including the note sued on, was accepted by the company. Nor did appellant even attempt to show that Reynolds, the traveling salesman who took Hoff’s order, had any authority whatever to accept the settlement on behalf of Frick Company, or to do anything else than report the transaction for approval at the home office. The fact, then, that Reynolds may have had the note in suit in his possession signed by Hoff prior to plaintiff’s signing the same, did not constitute a delivery to Frick Company, nor did it constitute a completed settlement of the sale. The execution of the note by defendant Filbert was the final act in the settlement,
We conclude, therefore, that upon the record there had been no delivery or acceptance of the note in suit in settlement of the sale to Hoff, prior to the signing of the note by Filbert, and that the note is supported by a sufficient consideration.
The order and judgment of the trial court are affirmed.