4 S.D. 420 | S.D. | 1893
This was an action brought by the plaintiff to recover the amount of a school district order or warrant, issued by the defendant school district. Judgment for the plaintiff, and the defendant appeals.
The school district order bears date April 29, 1882, and was presented for payment on the same day, and endorsed “Not paid for want of funds.” On the same day, April 29, 1882, the payee named in the order signed the following stipulation or memorandum on the back of the same: “For value received, the payment hereof is extended five years from date, conditioned that
1. The first error assigned is that the court erred in not granting defendant’s motion for judgment upon the pleadings. This motion was made before the trial commenced, and upon the ground that it appeared by the pleadings that more than six years had elapsed since the order was issued and payment refused, and that, as the defendant had pleaded the statute in bar of the action it was entitled to judgment without evidence, as the order itself was a part of the complaint by a copy being annexed thereto. This motion was properly denied, for the reason that the defense of the statute of limitations was new matter, but not a counterclaim, and therefore stood, by the provisions of the statute, as denied without a reply, under Section 4933, Comp. Laws, the last clause of which section reads as follows: “But the allegations of new matter in the answer, not relating to a counterclaim, or of new matter in a reply, is to be deemed controverted by the adverse party upon a direct denial or avoidance as the case may require. ” The defense might, on the trial, be met and overthrown by evidence on the part of the plaintiff. The motion, therefore, was prematurely made.
2. Again, it is claimed that the court erred in not granting defendant’s motion for judgment at the close of plaintiff’s evidence. The plaintiff introduced the school order in evidence —that is, the face of the order, — and rested; and thereupon the defendant moved the court for judgment, but the court denied the motion. We think the court ruled correctly. The introduction of the order made a prima facie case far the plaintiff, (Edinburg-American L. & M. Co. v. City of Mitchell, [S. D.] 48 N. W. 131,) and, until the defendant made its defense, it
3. The third assignment of error is that the court erred in admitting in evidence the school district order, upon the further ground that no authority on the part of the district to issue the order was shown. The learned counsel for the respondent that such an authority was alleged in the complaint, and was not denied in the answer, and therefore no issue was raised upon that question. In the second paragraph of the complaint it is alleged as follows: “(2) That on the 4th day of April, 1882, at an election duly called for that purpose, the officers of said school district were duly authorized to incur an indebtedness of $650 for the purpose of erecting a school house in said district; and in pursuance of said authority, the proper officers of said school district duly contracted with one E. G. Ledyard to erect and construct said school house for said school district, and took from said Ledyard a bond for the doing of said work, and made, executed and delivered to him its order (a copy of which is hereto annexed) on its treasurer.” The allegations contained in this paragraph are not denied or referred to in the defendant’s answer, and hence were admitted under the provisions of Section 4933, Comp. Laws, if well pleaded. The learned counsel for the appellant, however, contend that no facts are alleged in this paragraph, but only conclusions of law, which the defendant was not required to answer or deny. We cannot agree with the counsel in their construction of this paragraph. We are of the opinion that the pleader does allege facts that require a denial to put the authority of the board to issue the order in issue. The facts alleged were the ultimate facts to be established. It was not necessary to set out the evidence by which the ultimate facts were to be proven. An ultimate or issuable fact in a pleading is one essential to the claim or defense, and which cannot be stricken from the pleading without leaving it insufficient. Such issuable facts quite frequently involved a legal.
Again, this court held, in the case of Edinburg American L. & M. Co. v. City of Mitchell, supra, that school township warrants are ‘‘prima facie binding and legal. Their apparent validity may be impeached by showing that the officers were not properly authorized, but that is matter of defense.” In this case-there is nothing set up in the answer showing that the school ¶ arrant in controversy was not legally and properly issued. It is time it is claimed the school building it was issued to erect was not constructed and completed according to contract, but this did not raise any issue as to the power or authority of the school officers to issue the warrant. Hence the school warrant being prima facie legal and valid, and no facts being set up in the answer impeaching its validity on the ground of the want of power or authority in the school board to issue it or the school district to authorize its issue, the question of its legality cannot be considered on this appeal. Under either view, therefore, the warrant was properly admitted in evidence by the court, and, in the absence of any affirmative defense, was sufficient to sustain plaintiff’s action.
4. It is also insisted that the court erred in admitting the memorandum endorsed upon the back of the order, extending
5. The admission of the certificate of the school district officers in evidence is also assigned as error. This certificate describes the order substantially, and as an order payable in five years from the date of the certificate, April 29, 1882; and they further certify to the legality of the proceedings of the' township meeting, proceedings of the board of school district officers, value of the property of the district, etc. If the certificate was offered for any purpose other than to prove that
6. The learned counsel for the appellant further contend that, as the school building was not completed in accordance with the terms of the contract, the plaintiff was not entitled to recover any amount upon the school warrant, the consideration for the warrant being the erection and completion of the school building according to the terms of the contract. While it may be true, in one sense, that the consideration for the school warrant was the erection and completion of the school building, yet it was really issued to provide funds for the erection of the school building. The nature of the transaction is thus explained by Mr. Ledyard, the contractor and payee named in the warrant: ‘ ‘No work had been done on the schoolhouse at the time the school order was signed. I transferred it immediately after I received it, for the purpose of getting funds to build the schoolhouse with. The school board knew of my transfer. I gave them a bond to build the schoolhouse on consideration they were to give me this order to sell to get funds
7. Several errors are assigned upon the ruling of the court on the admission of evidénce. The following question was asked Mr. Webster, a witness for the defendant: “State, Mr. Webster, whether the district ever completed the schoolhouse.” This was objected to, on what ground does not appear, and the objection sustained. We are unable to see- the materiality of the question, and therefore see no error in excluding it. Mr. Webster testified that the schoolhouse was built on the land of the district, and that the district had subsequently occupied it for school purposes. Under the theory on which the case was tried, it seemed to have been conceded that, after completing the building, the district did occupy it, and held its schools therein. It was not material, therefore, whether the district formally accepted it or not. Mr. Webster was also asked as to the difference in value of the schoolhouse as left by the contractor and what it would have been worth if completed according to the contract. This was objected to on the ground, among others, that the witness had not shown himself competent to testify upon that subject, and the court sustained the objection. In this we think the court ruled correctly, as the witness had shown by his answers that he was not competent to give an opinion upon that question. He had no experience in building; was a farmer, not a mechanic competent to judge of the value of carpenter’s work. A similar question was asked of witness Simons, which was objected to on the same grounds, and also upon the further ground that witness Ledyard, the contractor, á witness for defendant, had given the cost of each item required to complete the building, which the plaintiff admitted was correct. The court sustained the objection on the ground that the difference between the building as shown and the building completed was not the proper measure of damages. We are of the opinion that under the answer in this case, and the evidence introduced by the defendant, the court properly sustained the objection. The an
8. At the close of the trial the defendant requested the court to make certain findings for the plaintiff, which the court declined to do. Comparing the findings signed by the court with those requested, we discover no material difference between them. No fact seems to be omitted in the findings by the court that was sustained by the evidence, material to the defendant, that could have possibly changed the result. The conclusions of law, of course, as staled b}^ the court, are necessarily different from those requested, but, in the view of the case we have taken, his conclusions of law were correct. It may be be proper to add that the damages proved by the defendant were found by the court, and deducted from the amount of principal and interest due on the warrant. Finding no error that requires a reversal of the judgment, the same is affirmed.