28 S.D. 255 | S.D. | 1911
This is an appeal by the defendant froin the judgment of the circuit court in favor of the plaintiff and order denying a new trial. The action was instituted by the plaintiff to recover the amount of taxes paid by him, which he in his complaint alleges was agreed to- be paid by the defendant, but which the defendant neglected and refused to pay. It is alleged in the complaint, in substance, that in the spring of 1906 the plaintiff purchased from the defendant a tract of 480 acres of land lying in Beadle county; that in consideration that the said defendant was to have the use and occupation of said land up h> March, 1907, he agreed to pay the taxes levied on said land for the year 1906, when the same accrued and before the same should become delinquent; that the tax so1 levied and assessed against said property was the sum of $59.58; that in violation of said agreement the defendant neglected to pay said taxes; that, in order to prevent the land from being sold for said taxes, the plaintiff on June 13, 1907, paid the same with interest amounting to' $61.96; and that by reason of the failure of the defendant to pay said taxes the plaintiff sustained damages in the sum of $61.96, for which he demands judgment. The defendant in his answer denies every material allegation contained in said complaint and alleges that in April, 1906, the plaintiff purchased the premises in question, and that a contract in writing was then entered into between the parties embodying said agreement; that on July 5th, the same year, the
It is disclosed by the evidence that in April, 1906, the plaintiff entered into a written contract with the defendant for the purchase of 480 acres of land in Beadle county; that in that contract no reference was made to the taxes for the year 1906; that on the 5th of July the defendant executed deeds for the property; and that the plaintiff executed certain notes secured by mortgages on the same, and also a note for $1,000 hereinafter referred to.
The plaintiff as a witness in his own behalf was shown the paper marked “Exhibit I,” and asked if that was the note which contained the agreement to pay taxes by Wolters, to which he answered: “This is the note. It was delivered in connection with the mortgage and other notes executed in pursuance of this original contract. He took this note, Exhibit I, with him when he left Mr. Null’s office. I signed it in presence of Mr. Wolters. This note was executed in payment of the contract for the land:” The witness further testified: “I paid it several days before it was due” at the bank where it was left for collection. “At the time I paid the note I did not take out the taxes from the note.”
Mr. Null, being called as a witness for the plaintiff, testified in substance: That when making out the deeds, mortgages, etc., in July, 1906, there was something said about taxes for the currenr year, about Mr. Wolters taking the crop that year, and that he prepared the note, inserting the clause into it as to taxes; that it must have been with the knowledge and consent of both parties, as they were both present.
The note was then offered in evidence and was objected to on several grounds, among which were that it was not an agreement on the part of Wolters, not being signed by him, and that therfe was no consideration for the promise alleged to have been made on the face of the note. The objection was overruled and the note admitted, the material parts of which read as follows: “On or before the first day of March, 1907, without grace, I promise to pay to the order of O. W. Wolters, one thousand dollars, value received, with interest at the rate of 6 per cent cent, per annum, from maturity until paid, less tax on land for 1906. * * *”
Section 1287, C. C., provides: “A contract in writing may be altered by a contract in writing, or by an executed oral agreement and not otherwise.”
Section 1232,' C. C., provides: “A written instrument is presumptive evidence of a consideration.” Heffleman v. Pennington Co., 3 S. D. 168, 52 N. W. 851; Corbett v. Clough, 8 S. D. 176, 65 N. W. 1074.
It will be observed by examination of the note introduced in evidence that the contract to pay the taxes on the part of the defendant, construed in connection with the facts and circumstances connected with the transaction, is in writing and in compliance
We do not deem it necessary to give separate consideration and discussion to a number of the errors assigned for the reason that, in our opinion, they do not possess sufficient merit to require such consideration.
The judgment of the circuit court and order denying a new trial are affirmed.