18 S.D. 446 | S.D. | 1904
This is an appeal from an order overruling the defendant’s demurrer to plaintiff’s amended complaint. The action was brought to recover the possession of a stock of
The demurrer to the complaint was interposed on the ground that it did not state facts sufficient to constitute a cause of action. It is contended by the appellant that there is no allegation of the actual value of the property, the only allegation as to value being that stated in the mortgage. It is further contended by the appellant that the complaint fails to show that any of the property mortgaged has been sold, or that any receipts had been received therefor, and hence that there were no sales to report or proceeds to be turned over. It is further contended that by the terms of the mortgage it is provided that said mortgagor shall retain a reasonable amount for his services for conducting the business, and that there is failure to plead that, after retaining a reasonable amount for his services for conducting the business, there was anything left in the hands of the defendant for which to render an account and pay over to the plaintiff. Neither of these positions is tenable. The defendant, as will have been noticed, covenants and agrees that he would, upon the first day of each month during the
The court was clearly right, therefore, in overruling the demurrer, and the order of the court overruling the same is affirmed.