2 S.D. 127 | S.D. | 1891
This is an action upon a promissory note executed by the defendants Lardner & Moore to Ismon & Ayres, and endorsed by them and by Ayers & Wardman. The case was tried to a jury, and at the close of the testimony of both parties the court directed the jury to find a verdict for the plaintiffs against Lardner, Moore, Ayers and Wardman, and, the jury having so found, a judgment was rendered thereon against them for $2,662.57, the action on the trial having been dismissed as to the firm of Ismon & Ayers. A motion for a new trial was made and overruled, and from the judgment and order an appeal has been taken to this court by the defendants.
The material portion of plaintiff’s amended complaint is as follows: “(3). Upon information and belief that on or about the 28th day of September, 1884, the above-named defendants made, executed and delivered a certain contract in writing, of which the following is a true and correct copy: ‘$1,137.67. Deadwood, Dakota, Sept. 28, 1884. Ninety days after date, for value received, we jointly and severally promise to pay to the order of Ismon & Ayres, eleven hundred and thirty-seven and 68-100th dollars, with interest at 2 per cent, per month from date until paid, and with attorney fees in addition to other costs, in case the holder is obliged to enforce payment at law. And we further waive all benefit of stay and exemption laws and appraisement before same on execution if obtained on this debt, of the Territory of Dakota. Wm. Lardner. John F. Moore. Payable at Merchants National Bank, Deadwood, D. T. [Indorsed:] Ismon & Ayres. Ayres & Wardman.’ (4) That the said defendants George H. Ismon and George V. Ayres, and the defendants George V. Ayres and Ben Wardman, wrote upon the back of said contract their firms’ names, to-wit, Ismon & Ayres and Ayres & Wardman, respectively, and upon
The facts disclosed by the evidence, briefly stated, are that in 1883, Lardner & Moore, being indebted to Ismon & Ayres, executed to them a promissory note, presumably similar in form to the note in suit, which was indorsed by Ismon & Ayres and Ayres & Wardman and transferred to the Merchants National Bank. The note was renewed several times, and the note in controversy was the last renewal. Mr. Alvin Fox, one of the plaintiffs, was at the time of the making and transfer of the original note and of all the subsequent renewals, cashier, and Mr. Stebbins, the other plaintiff, was president or vice president of the Merchants National Bank at the city of Deadwood, in Lawrence county, and said Stebbins and Fox constituted the firm of Stebbins, Fox & Co., doing a banking business at Sturgis City, in said county. Moore, one of the defendants, and Mrs. Lardner, the wife of defendant Lardner, were the principal owners of the False Bottom Water-Ditch property, which was leased for $925 per month, and the rents assigned to Mr. Fox as “trustee,” to be applied upon the indebtedness of Lardner & Moore to the Merchants National Bank, including the note in suit. Mr. Fox continued to act as cashier of the Merchants Bank until the spring of 1887, and was a partner of the firm of Stebbins, Fox & Co. at the time of the trial in 1890, though said firm ceased to do a banking business in the spring of 1887. During the time Mr. Fox was
On the trial of the case Mr, Fox was called as a witness on the part of the defendants, and was asked the following questions: “Question. I will ask you whether or not that note was paid before this action was brought. (Objected to. Objection sustained.) Q. Is it or is it not a fact that, before this action was brought, this note was fully paid? (Same objection, ruling and exception.) Q. Do you know of any payment being made upon this note by Mr. Choteau, before the action was brought, that is not credited thereon? (Same objection, ruling and exception.)” The principal ground relied on by counsel for the respondent for the exclusion of this evidence was, as more fully stated in their brief, ‘ ‘that the evidence of payment was not admissible, because the plea covering that evidence was in effect abandoned by the supplemental plea alleging an accord and satisfaction in April, 1888,” (release referred to in the answer of Ayers & Wardman and Lardner,) counsel insisting that, a plea of payment and accord and satisfaction being inconsistant, both cannot be true; that the allegations in the amended and supplemental answers, that on April, 1888, ‘ ‘this note was held, owned and controlled by the Merchants National Bank, and while so held and controlled by it Mr. Lardner effected an accord and satisfaction of it, is a recognition and admission of the fact that the note was a subsisting obligation at that time, and therefore it had not been paid before the commencement of the suit.” This theory of plaintiffs’ counsel, that inconsistent defenses cannot be pleaded under our Code or system of pleading, presents a very important question, that we shall consider at some length. Assuming, then, that the two defenses are inconsistent, we do not think defendants were required to abandon one defense in order to secure the benefit of the other, under the provisions of our Code, or that
But the learned counsel for the respondents contends that, if the rule adopted by us is the true rule, and the court erred in excluding the evidence of payment in the first instance, it cured the error by subsequently admitting evidence of payment. We cannot agree with counsel in this position. It is true defendants Moore & Lardner were permitted to introduce evidence of payment, but under such restrictions by the court as to the character of the evidence as to amount substantially to a denial of evidence upon that subject, as will be seen by the following questions asked Mr. Fox, and the objections and rulings of the court: “Question. Did Mr. Lardner or Elizabeth Lardner assign to you any of the rents of the False Bottom Water-Ditch coming from a lease with the Caledonia Mining Company? Answer. They did; yes, sir. Q. And did they, or either of them, direct you to apply a portion of the money so arising to the payment of this indebtedness sued on in this action? (Objected to as immaterial, irrelevant, incompetent and not binding upon the plaintiffs in this case.) * * * Q. How much money did you receive on behalf of the defendant, Mr. Lardner? A. I am unable to state the exact amount. It was a large amount. It was about nine hundred dollars a month. Q. For how long? A. It was not running continuously. The agreement was nine hundred and twenty-five a month on the lease for three years, and it was renewed for three years longer. Q. By the court: About how much did you receive? A. I could not state. Q. Did you receive an amount sufficient to pay this note and accrued interest? A. Yes, sir. I received an ample amount to pay that note. Q. By the court: You mean an amount equal to the amount of that note? A. Yes, sir. Q. What direction or understanding did you have with Mr. Lardner as to the paying out of this money that was received there, if any? A. After the expenses of the ditch were paid I was to apply the balance onto the extinguishment of the indebtedness. Q. After the expenses of the ditch? A. Yes, sir. Q. If I understand you, you said the indebted
The court seems to have overlooked the important fact that Mr. Pox, in making the application of the rents received by him and by him paid over to the bank, was acting as cashier of the bank, and not in his capacity as trustee of Moore and Mrs. Lardner, and that he was at the same time the active partner in the firm of Stebbins, Pox & Co., and that as such cashier he was charged with the knowledge he possessed as-trustee, and that his knowledge as cashier was the knowledge of the bank, and that his knowledge as partner in the firm of Stebbins, Fox & Co. was the .knowledge of the firm. Farmers & Traders Bank v. Kimball Milling Co., (S. D.) 47 N. W. Rep. 402; Bank v. Town of New Millford, 36 Conn. 93; Loring v. Brodie, 134 Mass. 453; Stevens v. Goodenough, 26 Vt. 676. While it may be true, therefore, that Mr. Fox re