10 S.D. 379 | S.D. | 1897
This is an action to recover 11,800 claimed by the plaintiff to be due upon a, promissory note executed by the defendants Torrey and Wilson. Judgment was entered in favor of the defendant Torrey, and the plaintiff appeals. Torrey, who was the only defendant served and who appeared in the action, filed a separate answer, denying each and every allegation of the complaint not thereinafter admitted, and pleaded that the time for the payment of the note had been -extended, and it was not, therefore, due at the time the action was commenced. At the trial the plaintiff objected to the in
The learned counsel for appellant rely upon three propositions for a reversal of the judgment, namely: (1) “There is no sufficient evidence of a contract for extension, even though it should be conceded that the president of appellant had authority to make one binding upon his principal. (2) There is no sufficient evidence on the part of the president of appellant of authority to enter into a contract or agreement of extension binding upon it, either by express authority, by custom, or by ratification. (3) The agreement relied upon is within the statute of frauds.” We only deem it necessary-to consider the first proposition: “Was the evidence sufficient to show a valid and binding contract for an extension of time for the payment of the note in controversy? Giving to the evidence of Mr. Torrey the most favorable construction for him of which it is susceptible, and drawing therefrom all the inferences that the jury might properly have drawn, still we are of the opinion that no valid or binding agreement for an extension on the part of the bank was shown. The elements of certainty, mutuality and consideration necessary to constitute a valid agreement for an extension of time, are wanting. It is contended by the learned counsel for the respondent that the making of the trip to Utah and California constituted a-sufficient consideration for the agreement. This might be true if the bank had agreed that, upon the condition that Torrey would make the trip, it would extend the time of payment of the notes. But the evidence