7 S.D. 363 | S.D. | 1895
This was an action upon two promissory notes executed by the defendant. The defendant, in his answer, admits that he executed the instruments,' but alleges as a defense that the notes were not executed and delivered to said plaintiff as promissory notes; alleges that said plaintiff promised and agreed with the defendant, at the time of the delivery of said pretended notes, that said instruments would not be used as promissory notes against defendant, unless the said plaintiff also secured the signature of
Two questions are therefore presented: First, was the evidence offered properly admitted? Second, did the court commit error in directing the verdict? The evidence and objections material to the questions under consideration are as follows: “William G. Faulkner, having been called and sworn on his own behalf testified as follows: * * * Q. You may state to the jury under what circumstances and conditions those notes were signed. State fully the facts in the case. (Objected to as incompetent and irrelevant; that they are seeking to offer parol testimony to vary the terms of a written agreement; and plaintiff further objects upon the grounds that the answer of the defendant does not state facts sufficient to constitute a defense to this action. Objection overruled. Excepted.) A. Well, this agent came to me in the field, with these notes, and wanted me to sign them. I didn’t want to sign the notes. I wanted to know where Smith was, and he said he was going direct to Smith, and he produced a mortgage at the same time. I signed a note at the same time I signed the mortgage, and I signed those papers with the understanding that they would not be notes until George Smith signed them, and he was going direct from me to where George Smith was. I was in the field working when he came there. I objected to signing them, but he had the mortgage and the note, and he seemed to be interested in getting George Smith on the note, and I put them in lais hands to get George Smith to sign them before they should bp
The learned counsel for appellant contends that the transaction only amounts to an agreement on the part of plaintiff’s agent that he would get Smith to sign these notes, and that his failure to comply with his agreement cannot release the defendant from liability. But such is not the view we take of the evidence. In our opinion the evidence shows that the defendant placed the notes in the hands of the agent to become operative only when executed by Smith, and upon the condition that unless they should be so executed by him they were not to be used as notes against defendant. As Smith never executed the notes they therefore never became operative or took effect as against the defendant as promissory notes.
Did the court err in directing a verdict for defendant? As there was no conflict in the evidence, and it was clearly sufficient to sustain the defendant’s defense, and such as the jury could only have drawn one inference or conclusion therefrom, we see no error in the direction of the court. We are of the opinion that the direction of the verdict was within the rules so often laid down by this court. Bates v. Railroad Co., 4 S. D. 394, 57 N. W. 72. Finding no error in the record, the judgment of the circuit court is affirmed.