5 S.D. 452 | S.D. | 1894
This was an action brought by the plaintiff, as holder of a school-township warrant issued by Hughitt school township to Thomas Kane & Co. or bearer, for the sum of $800, on May 26, 1884. Hughitt school township at that time embraced the territory noyj- included in the three school townships named as defendants. The defendants answered denying all the allegations of the complaint, and setting up as an affimative defense that the said warrant was fully paid and canceled on May 27, 1894. The plaintiff introduced the school warrant in evidence, and evidence tending to prove that plaintiff was owner of the same. Defendant then gave evidence tending to prove the following facts: That Hughitt school township, in 1884, voted to erect two school houses, one of which is within the limits of that township as now established, and one is within the limits of Holabird school township. That the contract to erect these school houses was awarded to one Nathaniel Cline for the sum of $1,200, and the contract to furnish the same was awarded to Thomas Kane & Co., of Chicago, for whom the said Cline acted as agent, for the sum of $800. That on May 26, 1884, a school warrant for $800 was issued to Thomas Kane & Co. or bearer, and was delivered to said Cline, who signed the receipt for same; one to said Cline for $500; and one to lumber merchants for $700, for said Cline; making a total of $2,000. That on May 27 — the day following the issuance of said warrants — the school township board, at the request of said Cline, forwarded by express to Thomas Kane & Co., Chicago, Ill., eight school-township bonds of the denomination of $100 each, which were received and retained by said Thomas Kane & Co. That the said Thomas Kane & Co. never received said school warrant, and never sold or transferred the same to the said
In the assignment of errors it is insisted that the verdict of the jury is not supported by the evidence, but this point is not argued by the appellant in their brief, and we shall, not, therefore, review the evidence, but shall confine our discussion to the errors of law assigned. Upon the empanelment of the jury the counsel for the appellant moved the court to strike from the answer the first paragraph thereof, for the reason that the same was sham. This motion was denied and appellant excepted. The paragraph sought to be stricken out is that defendants “deny each and every allegation alleged in said com - plaint generally and specifically, ” which answer is duly verified. It is contended by counsel for appellant that, as the defendants, in a subsequent portion of their answer, pleaded payment in full, the so called “general denial” must necessarily have been false, and was, therefore, sham, and should have been stricken out; but, in our opinion, this, contention cannot be sustained. A court does not possess the power to strike out as sham a verified answer containing a general denial. A party is entitled to a trial upon the pleadings, when he has denied all the allegations of the complaint. The case cannot be determined on motion to strike out his general denial as false, under our practice. The party is entitled to have his case tried in the manner provided by law. Samuel Cupples Wooden Ware Co. v. Jensen (Dak.) 27 N. W. 206: Bank v. Leland, 50 N. Y. 673; Fay v; Cobb, 51 Cal. 313; Thompson v. Railway Co., 45 N. Y. 468; Wayland v. Tysen, Id. 281. This question was very ably discussed by Grover, J., in the last case cited, in which he uses the following language: ‘‘This section in question simply confers power upon the court to strike out sham and irrelevant answers and defenses. This power the court, as we have seen, possessed and exercised under the pre-existing laws. For reasons deemed satisfactory, it was not ex
On the trial the plaintiff asked the witness Cline the following question: “I will ask you whether or not you ever presented that warrant for payment to the treasurer of Hughitt township, and if so, when? Answer, yes, sir; I did. I presented it.” This was objected to on the ground that it was incompetent, and not the proper manner of proving presentation or registration, and the objection was sustained. The objection came too late. The question had been answered, and the answer was not stricken out, and remained as part of the evidence in the case. But later in the trial, witness Cline, on cross-examination, was interrogated as to the matter fully; and if there was any error in the court’s ruling, it was cured by the admission of the evidence subsequently.
At the close of the plaintiff’s and appellant’s evidence, the counsel for' the defendants and respondents moved the court to instruct the jury to find a verdict for the defendants. This mo*
Objection was also made to the introduction of any evidence under the defense of payment by the defendants, on the ground that said answer as to said defense did not state facts sufficient to constitute a defense; the specific objection being that it is not alleged therein to whom payment of the warrant was made. This defense is set up in the answer as follows: That the order described and set out in the plaintiff’s complaint “was fully paid and satisfied, and the indebtedness represented thereby was fully paid and satisfied, and completely canceled, on or about May 27, 1884.” We are of the opinion that, under the rule that a liberal construction should .be adopted by the trial court in construing pleadings objected to for the first time on the trial, sufficient facts were stated in this defense to constitute a good defense to the action. Unless payment was made to the proper party, it would not constitute a payment. The statement, therefore, that payment was made, necessarily carries with it the implication that the payment was made to the proper person. Such would be the ordinary construction of the language used, and language used in a pleading should be construed in its ordinary sense, unless technical terms, having a special meaning, are used. Johnson v. Burnside (S. D.) 52 N. W. 1057. But the defect, if one existed, was not such as to
At the close of the trial, the court, on the motion of the defendants, permitted them to amend their answer to make 'it conform to the proof. This is also assigned as error. Amendment of pleadings in the trial court is largely within the discretion of the trial judge, and this court will not reverse the action of such courts in allowing amendments, unless there has been a manifest abuse of such discretion. This court has given its sanction to a very liberal exercise of such discretion by trial judges in allowing amendments in furtherance of justice, and discountenanced the failure to allow amendments in proper cases. Jenkinson v. City of Vermillion (S. D.) 52 N. W. 1066; Kelsey v. Railway Co. (S. D.) 45 N. W. 204.
Appellant’s counsel further contend that there was a ma terial variance between the evidence given by the defendants and the pleadings as amended, in this: that the evidence did not tend to prove payment, but an accord and satisfaction, and was therefore inadmissible under the pleadings. The evidence, however, was admitted, and we think properly. The facts were.fully stated in the amended answer as follows: “Defendants further state that the payment and satisfaction hereinbefore referred to of said indebtedness and said order was made by'the execution and delivery by the defendant Hughitt school township, on or about the 27th day of May, 1884, to Thomas Kane & Co., the payee in said order, of the duly issued and authorized bonds of said Hughitt school township, amounting to the sum of $800, which were received by said Thomas Kane &
Appellant further contends that the learned court below erred in refusing to give the following instruction: “The jury are instructed that the plea of payment, as made in this case, is an affirmative defense, and the onus is upon the defendant to prove the same by a preponderance of the evidence.” It is insisted by the respondents, in their amended abstract, that no exception was taken to the refusal of the court to give this instruction, either at the time refused or subsequently. Without at this time determining the question of whether or not an exception was taken before judgment (Uhe v. Railway Co. S. D.) 57 N. W. 484, we think the error was cured by the third instruction given by the court on the part of the appellant, which reads as follows: “Unless you find from the evidence, from a preponderance of the testimony that the defendants paid this order sued on to some one authorized to receive payment thereof,