18 S.D. 459 | S.D. | 1904
This is an appeal from a judgment in favor of the defendants and order denying a new trial. The case was tried to the court, and a certain special issue was submitted to a jury. The action was brought to foreclose a mortgage on which there was a balance due of $318.50, on August 2, 1890. The defendants were residents of Hutchinson county, near Scotland, and on August 2, 1890, they applied to Lavender & Spannagel, a firm engaged in the mercantile business in Scotland, for the sum necessary to pay their note and mort
It was stipulated at the trial: (1) That a letter properly stamped and addressed to a person residing at Huron, S. D., if
It is contended by the plaintiff and appellant that the court erred, in making its conclusions of law, in finding that the receipt of the check by Kelly & Read for $318.50 from the defendent Adam Weiss, and the holding of the same until August 9, 1890, was such'negligence as did in judgment of law convert the provisional payment into an absolue payment of said note and mortgage, and in finding that the note and mortgage were fully paid by defendant before the commencement of the suit. It is further contended by the appellant that the case is governed by section 2256, Civ. Code 1903, which reads as fpllows: “If a bill of exchange payable at sight or on demand, without interest, is not duly presented for payment withm ten days after the time in which it could, with reasonable diligence, be transmitted to the proper place for such presentment, the
It clearly appears from finding 13 that had the check of Lavender & Spannagel been presented for payment to the bank at Scotland within the time it should have been presented at common law the check would have been paid. The failure to collect the check was due, therefore, to the negligence of the agents of the plaintiff in retaining it at Huron several days after it should have been forwarded for collection. The court was clearly right, therefore, in its conclusions of law that the plaintiff, through its agents, was guilty of such negligence as would in judgment of law “convert the provisional payment into an absolute payment of said note and mortgage.”
It is contended by the appellants that the court should have directed the jury to find upon the evidence of the agent Read that the check was not received at Huron until the 9th day of August, but this contention is untenable. The question was one of fact for the jury and the court. Mut. Reserve Fund Life Ass’n v. Hamlin, 139 U. S. 297, 11 Sup. Ct. 614, 35 L. Ed. 167; Marston v. Bigelow (Mass.), 22 N. E. 71, 5 L. R. A. 43; Pennypacker v. Capital Ins. Co. (Iowa), 45 N. W. 408, 8 L. R. A. 236, 20 Am. St. Rep. 395; Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Briggs v. Hervey, 130 Mass. 186; Huntley v. Whittier, 105 Mass. 391, 7 Am. Rep. 536.
Finding no error in the record, the judgment of the circuit court and order denying a new trial are affirmed.