156 N.W. 799 | S.D. | 1916
This action was brought ;by plaintiff as the in-dorsee of a negotiable note executed and1 delivered by defendants to McLaughlin Bros., given as part consideration for a horse sold and delivered 'by McLaughlin Bros. to defendants. The complaint alleged the execution and delivery of the note and assignment and delivery thereof to- plaintiff and the nonpayment thereof. The answer of defendants admitted die execution and delivery of said note, denied that plaintiff was the lawful owner and holder thereof, and alleged that McLaughlin Bros, at the time said notes were signed secretly made a written agreement releasing two- of defendants from payment on said note; that there was a breach of warranty in the sale of said horse by reason of certain alleged false and fraudulent representations made by McLaughlin Bros.; that said horse was not worth to exceed more than $1,000 at the time of delivery. There was testimony offered tending to show that plaintiff became the owner of said note before maturity, for value, in due course, and without notice of any defenses thereto. At the close of all the testimony the plaintiff moved for .a directed verdict in his favor, on the grounds, among others, that no defense had been pleaded or proven, and that no rescission of the contract had been pleaded or proven. There is no- allegation in the answer or any testimony that the horse, which defendants, by the answer, admit to. have been1 worth $1,000, was ever returned or offered toi be returned or restored to McLaughlin Bros, or any one for them, upon the discovery of the alleged fraud. No counterclaim for damages has been interposed by defendants.- We are of the view that the verdict was properly directed. There was no compliance or attempt shown by defendant to comply with section 1285, Civil-Code. No -defense was pleaded against McLaughlin Bros, were
The judgment and order appealed from are affirmed.
