5 S.D. 468 | S.D. | 1894
Plaintiff brought suit against defendants indivividually to recover upon the following promissory note: $2,000.00. Hermosa, D. T., Oct. 13, 1887. Two years after date, for value received, we, the directors of the Custer County Agricultural, Mineral and Stock Association, promise to pay to the order of Jacob L. Miller two thousand ($2,000,00) dollars with interest at twelve per cent, per annum, value received, interest payable annually. Signed by directors Custer Co. Agricultural, Mineral and Stock Association: A. S. Way. Thomas L. Monaghan. J. F. Baker. L. F. Straight. J. L. Buckingham. Ed. Stenger. Peter Peterson. G. C. Boland.” After introducing the note in evidence, together with an endorsement thereon of one year’s interest, amounting to $240, plaintiff rested his case in chief. Defendants, in support of the allegations of their answer, offered evidence tending to prove the corporate existence of the ‘‘Custer County Agricultural, Mineral and Stock Association;” that defendants were the directors thereof authorized to borrow the money, and expend the same, for the use and benefit of such association; that the same was thus used, and the action of the defendants in borrowing the money was ratified by the corporation; that the note was the note of the association, executed by the defendants and accepted by the plaintiff as such, with a full and complete understanding that plaintiff would look to the corporation, and not to the defendants personally, for the payment thereof. Upon the objection of plaintiff’s counsel to the introduction of such evidence, the court withheld its ruling, and the same was received subject to a motion to strike, which was made at the close of the case, and all of defendants’ evidence was excluded. The case was tried to the court, without a jury There was a judgment for plaintiff for the full amount claimed, from which the defendants appeal to this court. The motion for a new trial was made after judgment, and upon the sole ground of newly discovered evidence material to the defendants’ cause, which they could not with reasonable diligence have discovered and produced at the
This court has held in cases decided at this term that while an appeal from a judgment does not present questions of fact to this court for review, where a motion for a new trial is made after entry of judgment, and no appeal is taken from an order denying the same, errors of law occurring at the trial, and duly excepted to, may be reviewed on appeal from the judgment alone, when presented by a proper bill or statement, although no motion for a new trial was made in the court below. Mercantile Co. v. Faris (S. D.) 58 N. W. 813; Manufacturing Co. v. Galloway, Id. 565; Pierce v. Manning (S. D.) 51 N. W. 332; Evenson v. Webster (S. D.) 53 N. W. 747. Governed by these decisions, our inquiry will be limited to such assignments of error relating to errors of law occurring at the trial and excepted to by counsel for defendants, as we may deem essential to a proper determination of this case. It is urged by counsel for appellants that the court erred in sustaining, at the close of the testimony, plaintiff’s motion to strike out all the evidence, parol and written, offered on the part of the defendants, to prove the existence of the corporation, the official capacity of the defendants, and their authority to make the loan, together with evidence tending to prove that it was intended and understood by all the parties, at the time the note was executed, that the same should be the note of the corporation, and not the individual note of the defendants; and in rendering judgment for plaintiff, and against the defendants, for the full amount claimed in the complaint. While, as a general rule, parol evidence is not admissible to vary or explain the terms of a written instrument, our statute makes a. well-defined exception, and the doctrine seems well established that parol evipence is admissible, as between original parties,-when something on the face of the writing creates a doubt as to the parties obligated, and the recitals of the instrument are such that the
* [Signed] A. W. Whitney, Supt. Keets Mining Co., John B. Pearson.” Judge Moody, who wrote the opinion, said: “This contract was read in evidence without objection. It was proper to explain it, so far as it could be explained, by evidence of the circumstances under which it was made, and the matter to which it related, * * * In the light of all these facts, the inference therefrom is not only plain, but conclusive, that it was the intention of the agent of the firm, their superintendent, their member, to bind the company; as well as that of the other party that it should be bound It follows that it was not error to admit the evidence objected to, nor to refuse the instruction asked.” The case of Martin v. Smith (Miss.) 3 South. 33, was an action against Martin on a bill of exchange, in the usual form, except that Martin.signed it as “Treasurer.” Martin defended on the ground that he signed the instrument as treasurer, and that no personal obligation attached to him, and that these facts were known to Smith. The trial court held, on demurrer, that the terms of a bill of exchange could not be varied by parol evidence, and plaintiff had judgment against Martin for the amount of his claim. In reversing the order sus
The note in suit at least suggests upon its face the existence of the corporation, and that the defendants were officers thereof; and parol evidence tending to prove that it was not the individual note of the defendants, but the obligation of the corporation, and that it was so understood by all the parties at the time the same was executed, did not necessarily tend to vary its terms, but to explain ambiguities, to make certain that which was doubtful, and to give effect to and carry out the intention of the parties. We think the evidence offered on the part of the defendants should have been considered, as the court s? ems to have been unable to determine from the note itself the capacity in which the same was executed, and witnesses upon both sides were allowed to testify quite fully upon that issue, raised by the pleadings. At the close of the testimony, there was a direct conflict in the evidence upon that subject; and, in our opinion, it was error to strike out defendants’ evidence, and to hold them individually liable. Had the court considered all the evidence offered by the respective parties, and