9 S.D. 536 | S.D. | 1897
This was an action to recover upon a promissory note of which the following is a copy: “$450. Spearfish, South Dakota, July 7th, 1893. Three months after date, for value received, we promise to pay to the order of the Welcome Milling & Smelting Co. four hundred and fifty dollars, with interest at 10 per cent per annum from date until paid, and with attorneys fees in addition to other costs in case the holder is obliged to enforce payment at law. Payable at the Bank of Spearfish, Spearfish, South Daikota. [Signed] George Schar. Wiebke Schar.” Indorsed: “July 10th, 1893. Pay to the order of Bond & Johnson. The Welcome Milling & Smelting Co., per P. L. Gibbs, Supt.” Indorsed: “Bond & Johnson.” The defendants pleaded that the note was given in payment of a subscription made to secure the erection of reduction works near Spearfish City, and that there were conditions in the subscription agreement that had never been complied with on the part of the payee of the note. The evidence was undisputed that the plaintiff became the owner of the note before its maturity. All evidence offered by the defendants tending to prove their defense was objected to by the plaintiff and appellant upon the ground that the note was negotiable, and the evidence inadmissible as against the plaintiff, who acquired title to the note before its maturity. The objection was overruled, and the evidence admitted, and a verdict rendered in favor of the defendants; and from- the judgment rendered thereon, and the order denying a new trial, the plaintiff appeals.
The second question presented by the record is, did the court, in admitting the evidence tending to sustain the defendants’ defense, err? The subscription contract before referred to contained, among other conditions, the clause “provided, always,” and this agreement is upon the following condition, to-wit: ‘ ‘The total number of shares taken under the terms here