160 N.W. 520 | S.D. | 1916
Appeal from an -order overruling demurrer to complaint. Action against Roetzle & S-ohopf, copartners and retail dealers in intoxicating liquors in the city of Sioux Falls, and Western Surety Company, -bondsman, for damages resulting from unlawful sales of intoxicating liquors to- plaintiff’s 'husband. The -complaint is attacked on two grounds only: First, that it fails to show the defendant Western Surety Company to- be a legal entity. Second, that -the complaint fails to- show “conditions precedent to such bio-nd becoming- a valid obligation.”
The bond itself re-cited that “Western Surety Company, a corporation, as surety, are held and- firmly bound,” etc. -The acknowledgment attached to- the bond recites that:
“John A. Bowler, etc., known t-o- -me to- be the president o-f the Western .'Surety Company, the corporation that is described in and that executed the within undertaking,” etc.
A-lso attached to and made a part of the undertaking is an affidavit of John A. Bowler, stating that:
“Fie is ¡president o-f the Western Surety 'Company, and that said company is by its charter, etc., and has -complied! with all the provisions of the law o-f the state of South Dakota.”
This action is upon an express contract. Garrigan v. Thompson, 17 S. D. 132, 95 N. W. 294: Palmer v. Schurz, 22 S. D. 289,
In First Nat. Bank v. Dakota F. & M. Co., 6 S. D. 624, 61 N. W. 439, it was held in effect that when an express contract, pleaded in hsec verba and made a part of the -complaint, discloses that under the express terms of such contract no present liability exists, a demurrer to the complaint should he sustained. In Aultman v. Siglinger, 2 S. D. 442, 50 N. W. 911, this court held that “a complaint which does not state a cause of action by its averments, without reference to exhibits-, is. bad1 upon demurrer,” and saidl exhibits “will not be considered in determining the sufficiency of the complaint.” The broad- rule thus stated- has certainly been abandoned by -this court in its later decisions, and the Siglinger -case -i.s- said- to- have been overruled in First Nat. Bank v. Dakota F. & M. Co., 6 S. D. 425, 61 N. W. 439. See opinion by Haney, J., in Cranmer v. Kohn, 11 S. D. 246, 76 N. W. 937. See, also, opinion by Fuller, J., in Múrtha v. Howard, 20 S. D. 152, 105 N. W. 100, in which he states-, in substance, that recitals in. exhibits attached to and made a pairt of a pleading- should be considered! 'in determining the sufficiency -of facts pleaded “according to all modern- authority and- the uniform1 decisions' of this court disaffirming the case of Aultman & Co. v. Siglinger.”
“As against a 'demurrer, the office of which is to raise a substantial issue on tire law! off tli-e case, sand not. on the law of practice and pleading,' evidentiary facts, and even -inferences from averments amounting to: mere conclusions of law, will be considered in its favor.” Dunlap v. C., M, & St. P. Ry. Co., supra.
Under this rule, the recitals in the express- contract pleaded in and made a .part of the complaint must be considered upon' demurrer a.-sufficient averment that the- defendant Western Surety Company is- a corporation,
Section 2839, Pol. Code, -requires -every person about to engage in the business of selling intoxicating liquors at.-retail -to execute a bond with sureties to be approved by the board of county commissioners, which bond when -duly executed and approved -shall he delivered to the county treasurer of the county.
The judgment appealed from is affirmed.