12 S.D. 93 | S.D. | 1899
This was an action brought by the plaintiff against the defendant to recover $400 claimed to be due him on his deposit account with said bank. The defendant bank, prior to the commencement of this action, had applied the balance due plaintiff on his deposit account to the payment of a certain note executed by the plaintiff to the defendant on or about the 4th day of June, 1892, for the sum of $560,- upon which there was paid December 31, 1892, the sum of $206.41. The defendant alleges in its answer that on or about the 13th day
Under those circumstances, and in view; of the conflict as to what the agreement was between Charles Grissel and the officers of the bank at that time, it was certainly proper for the bank to show what conversations and negotiations were had between it and R. J. Grissel between the 8th of June, 1893, and the 1st of September, 1894, in reference to the payment of his note, and a request for an extension of the time of payment, asked for on the part of R. J. Grissel. In view of this conflict in the evidence, the jury were entitled to know how R. J. Grissel
Appellant further contends that the court erred in instructing the jury as follows: “When parties are making a bargain, they are held to mean and intend just what the language used them commonly as used in reference to
The appellant also contends that the court erred in refusing to give the following instructions asked for on the part of the defendant:
‘ ‘If you find from the evidence in this case that Charles Grissel understood that R. J. Grissel was to be released from his liability from the note he gave said bank, and, by reason of such -understanding, he gave the note and mortgages in evidence, this fact alone will not entitle this plaintiff to a verdict, unless you find as a fact, by a fair preponderance of the evidence, that the understanding to release R. J. Grissel was mutual; that is, that Mr. Hinds also understood that R. J. Grissel was to be released from his liability on said note by the giving of the Charles Grissel note and mortgages.’’
“The burden of proof is on the plaintiff to show, by a fair preponderance of all the evidence, that it was the mutual un
We are of the opinion that these instructions should have been given. “It is essential to the execution of a contract that there should be: * * * (2) Their consent. * * *” Sec. 3495, Comp. Laws. “Consent is not mutual unless'the parties all agree upon the same thing in the same sense. But in certain cases, defined by the chapter on interpretation, they are to be deemed so to agree without regard to the fact.” See. 3515, Id. We see no objection to these instructions, and are of the opinion that they should have been given to the jury. There could be no contract binding upon the parties unless the minds of the parties met, and, if Charles Grissel understood that the old note was to be canceled by the new note, but the bank, through its cashier, had not in fact agreed that it should be so canceled by Mr. Hinds, the cashier of the bank, then there was in fact no agreement to that effect. R. J. Grissel had the right to regard the §560 note as paid only in case there was in fact an agreement between Charles and the bank that it should be so paid by the new note. As the instructions requested evidently stated the law correctly as applicable to the facts in this case, they should have been given, and the refusal of the court to give them was error. For these errors in the exclusion of evidence, and in giving and in refusing instructions to the jury, the judgment of the court below is reversed, and a new trial granted.