10 S.D. 205 | S.D. | 1897
This action upon a promissory note negotiable in form, for §5,000, executed by, made payable to, and bearing the blank indorsement of, the defendant corporation, together with the guaranty of its co-defendants, resulted in a judgment for the defendants, from which, and from an order overruling a motion for a new trial, plaintiff appeals. It is shown by the evidence that, when executed and indorsed, the note was placed in escrow with D. M. Hillis, to be delivered to A. F. Smith only upon condition that the latter should deliver for the defendant corporation, at Sioux Falls, certain machinery, assignments of patents, and other property; and, notwithstanding Smith failed to perform any of these conditions, the
Respondents contend that, as the makers’ corporate seal is affixed to the note, it is not negotiable; citing Heffleman v. Pennington Co., 8 S. D. 162, 52 N. W. 851. This position is untenable. The Civil Code declares that “all distinctions between sealed and unsealed instruments are abolished.” Comp. Laws, Sec. 3549. The Code of Civil Procedure provides that the period within which an action on a sealed instrument' can be commenced is 20 years. Id. Sec. 4849. These apparently inconsistent provisions were incorporated in the revision of 1877. The several Codes then adopted are deemed to have been passed on the same day, and as parts of the same statute. If the provisions of one Code conflict or contravene the provisions of another, the provisions of each must prevail as to all matters and questions arising thereunder out of the same subject matter. Rev. Codes 1877, p. 900; State v. Smith (S. D.) 67 N. W. 619. The only point decided in Heffleman v. Pennington Co. is that county warrants with the county seal attached are sealed instruments, within the meaning of the statute of limb
No opinion is expressed concerning the defendant corporation’s power under its charter to purchase the property contracted for, when its note was issued. As the question does not appear to have been considered by the court below, it would be both unfair and unsatisfactory to dispose of it upon a record thus prepared.
Concerning the guaranty written upon the back of the note introduced in evidence, which shows a heavy pen mark drawn across the word “we” and the pronoun “I” inserted, thereby changing a joint instrument to a joint and several obligation (Comp. Laws, Sec. 3575), the evidence was conflicting as to the time the alteration was effected; and; in view of all the circumstances, it was not error to charge the jury that the appearance of the instrument was sufficient to put a purchaser upon inquiry, and appellant has no cause to complain of the following instruction: “Therefore, if, after you consider this evidence, you believe, by a preponderance of the evidence, that the guaranty, at the time it was signed by Mr. Ward, Hayward Watson and the other guarantors, read ‘we guarantee,’ etc., and that the word ‘we’ was subsequently erased, and T inserted in its place without their knowledge or consent, then the court instructs that you shall find for these defendants, the guarantors, in this action. ” A different question was presented in the recent case of Implement Co. v. Solomon, (S. D.) 70 N. W. 639. As the alteration in the guaranty then under consideration did not enlarge the liability of the makers thereof, or in any manner tend to excite suspicion, we entertained the presumption that the alteration was made prior to Or contemporaneously with the execution and delivery of the instrument, and held that it was error to exclude the same from the consideration of
As the court admitted the paper in evidence, and placed upon defendants the burden of proof by instructing the jury, in substance, that the guaranty could not be avoided unless it was found from a preponderance of evidence that an alteration of the instrument was effected without their knowledge or consent, after the execution thereof, the further charge that the alteration was sufficient to put subsequent purchasers upon inquiry could not, in any view of the circumstances of this case, be regarded as fatally erroneous. Moreover, the delivery of this fraudulently procured instrument was unlawfully made or obtained by plaintiff’s assignor or some preceding holder, under circumstances unrevealed; and it will not do for us to say, as a matter of law, that the trial court was not justified in concluding from the competent evidence derived from an inspection of the written guaranty that this material alteration was intrinsically suspicious. As no claim was made that this obligation, without consideration, fraudulently obtained, and surreptitiously put in circulation, was ever accessible to any one not assuming to be entitled to benefit under it, in the absence of any intimation to that effect or a request for an instruction upon the point, the court was not bound to charge the jury that the alteration would not release guarantors if made by a stranger without the consent of the holder of the instrument, as provided by Sec. 3595 of the Compiled Laws.
After stating that plaintiff, if an indorsee in due course, could recover, notwithstanding the unlawful delivery to Smith, the court charged the jury as follows: “But the burden of proof rests upon plaintiff to show that he is a bona fide purchaser of the note, for value, and before maturity, and that question is submitted to you. You have no right arbitrarily to say that you disbelieve a witness unless you believe from the
Whether it was error to give this cautionary instruction, that ‘ ‘you have no right arbitrarily to say that you disbelieve a witness unless you believe from all the evidence that you have just cause,” is a question not before us, for the reason that no exception was taken thereto, and the point is not included in appellant’s assignments of error. In Peterson v. Siglinger, 3 S. D. 255, 52 N. W. 1062, this court said: “When a party assigns errors in the charge of the court, the abstract must show that exceptions were taken at the proper time to the portions of the charge alleged to be erroneous, or to the instructions given or refused at the request of the parties. Exceptions, to be available to the appellant, must affirmatively appear in the abstract. ”
Conceding that the witness Spiro, through the agency of Whom the note appears to have been purchased, was entirely
From a careful examination of every exception available to appellant, we are convinced that the case was fairly tried, and that no sufficient ground for reversal exists. The judgment appealed from is therefore affirmed.