12 S.D. 36 | S.D. | 1899
This was an action on the part of the plaintiff to recover of the defendant the amount of a premium note executed by said defendant for the sum of 853. The complaint was in the usual form, alleging that the plaintiff was duly organized created and existed under and by virtue of the laws of this state; that the said defendant made, executed and delivered to the plaintiff his certain promissory note, by which he promised to pay to the plaintiff the sum of $53, or such portion thereof as might be assessed by the officers of said company for the payment of losses by hail according to the rules and regulations of said corporation; that at an annual meeting of directors of said plaintiff, held at its office, at Elkton, on the 26th day of August 1895, an assessment was duly made on the notes taken by the plaintiff during the year 1895, to the full amount .of said notes. And plaintiff demanded judgment therefor. To this complaint defendant answered, denying certain allegations of the complaint, and alleged, as a fifth defense, that said note was made, executed, and delivered because he relied upon certain false and fraudulent representations made by said plaintiff and by its general officers at the time of the execution and delivery of said note; that it was represented to the defendant at the time of the execution and delivery of the said note that the plaintiff herein had at that time about 70,000
The motion to direct the verdict on the part of the plaintiff was made on the ground that the defendant had failed to establish any defense to the action. The -motion to direct the verdict on the part of the defendant was made on the following grounds: (1) Because the alleged assessment is so obscure and indefinite as to be void; (2) because the alleged assessment included and composed, not only the losses and expenses incurred, but also conjectural expenses to be incurred, and also losses for uncollected notes; (3) because the alleged assessment was not made at the time authorized by the by-laws, nor at any regular or special meeting of the board of directors properly called; (4) “because it appears from the uncontradicted evidence that the defendant was induced to enter into the contract by the false representations made by the plaintiff, material to the contract, upon which the defendant relied. ”
The appellant contends that the answer is insufficient as a counterclaim for damages sustained by the defendant by reason of the alleged fraudulent representations on the part of the plaintiff by which he was induced to enter into the contract. It will be noticed in the answer that the only statement of damages sustained by the defendant is that had there been the
We have not overlooked the other grounds stated in the motion, but, as there is clearly no merit in either of these grounds, we do not deem it necessary to discuss them in this opinion. The judgment of the court below is reversed.