11 S.D. 529 | S.D. | 1899
Plaintiff states his cause of action as follows: “(1) That the First National Bank of Ft. Pierre, South Dakota, was on January 9, 1894, and for a long time prior thereto, and until October 1, 1894, a corporation organized and existing under the laws of the United States of America. (2) That the First Bank of Ft. Pierre, South Dakota, was during all of the times hereinafter mentioned a corporation organized and existing under the laws of the State of South Dakota. (3) That on January 9, 1894, at Ft. Pierre, South Dakota, the defendant, F. W. Pettigrew, by his promissory note, promised to pay to the order of the First National Bank of Ft. Pierre, South Dakota, one thousand dollars on January 9, 1895, after date, with interest thereon at the rate of 6 per cent, per annum from maturity until paid. (4) That on or about the 1st day of October, 1894, the said First National Bank of Fort Pierre, South Dakota, sold and delivered said note to the First Bank of Ft. Pierre, South Dakota, for a valuable consideration; that thereafter, and before the maturity of said promissory note, and on or about the 12th day of December, 1894; the said First Bank of Ft. Pierre, South Dakota, made an .assignment of all its property, for a valuable consideration, for the benefit of its creditors, to this plaintiff, and among the property so assigned was the pi’omissory note described in paragragh 3 of this complaint. (5) That this plaintiff i§ the owner and holder of said note, and that the defendant has not paid .the same, nor any part théreof, and the same is due.” The only denial in the answer is stated thus: “That he [the-defendant] denies each and every material allegation in said complaint, except as hereinafter specifically admitted.” The authorities are conflicting concerning the effect of the word “material,” when used
The affirmative defenses and evidence will be considered in connection with the ruling of the court upon plaintiff’s motion to direct a verdict in his favor, which was granted. In October, 1894, the assets of the First National Bank of Ft. Pierre were transferred to the First Bank of Ft. Pierre. At that time Eugene Steere was president of the former bank,'and had been such officer for about, four years. Mr. Steere, testifying as a witness for defendant, states that the First - National" Bank went out of existence October 1, 1894, when the First Bank came -into existence; that the stockholders of each were practically the same; that he wTas promoter and organizer of the First Bank; and that he had full knowledge in regard to the notes and liabilities derived from the former corporation. Concerning the note in suit, he says: “I first saw it when it was drawn, January 9, 1894. At the time the bank was started, in 1890, we had to have five directors in the bank, and we could have only three directors who had money enough as directors, as they each had to have $1,000 stock in the bank. So I got George Mathieson, and I have forgotton who the other was now, but I think it was Mr. Kleiner, to act as directors; and I took their notes, and issued them, stock of $1,000, and put in the money myself, so they could act as directors, and still hold stock in the bank. Afterwards, I think, Mr. Kleiner went to Washington, and I got Mr. Pettigrew" to take his place under the same. I took Mr. Pettigrew’s note, and issued him the stock, and put in the money myself in the first; place, and kept
The foregoing statement is believed to be a fair summary of the material evidence, and taken with the facts established
It is conceded that the judgment exceeds by $60 the amount due when it was rendered. It should be reduced from $1,141 to $1,081. As attention was not called to this error in computation until appellant’s brief was filed in this court, the modification will not affect respondent’s costs or disbursements. The action is remanded, with directions to modify the judgment as indicated herein.