19 S.D. 293 | S.D. | 1905
This was an action by the plaintiff to recover of the defendants the amount claimed to be due upon a promissory note executed by the defendants on December 12, 1895, in which they promised to pay the plaintiff the sum of $700 one year after date, with interest at 8 per cent, per annum. There were two payments indorsed upon the note of $100 each —one July 13, 1898, and the other September 28, 1898. Defendant Willey, in his answer, admitted the allegations of the plaintiff, and alleged as a defense his discharge in bankruptcy. The plaintiff, in her reply, admitted the defendant’s discharge in bankruptcy, but alleged that since the said discharge the defendant had voluntarily promised, both in writing and orally, to pay the said note. At the close of all the evidence the defendant Willey moved the court to direct the jury to find a verdict in his favor, and, that motion being denied, the plaintiff thereupon moved for the direction of a verdict in favor of the plaintiff, which motion was granted. From the judgment thereupon entered the defendant Willey has appealed.
The only question presented that we deem it necessary to consider and discuss in this opinion is as to whether or not there was a new promise by the defendant Willey to pay the note in controversy subsequent to the adjudication of his bankruptcy in the United States District Court. Both parties having made motions, the defendant for the direction of a verdict in his favor and the plaintiff for the direction of a verdict in her favor, and no request, having been made by either party for the submission of the case to a jury, the facts must be regard
Taking this view of the evidence, the court was clearly right in denying the motion of the defendant for the direction of a verdict in his favor, and in granting the motion of the plaintiff for the direction of a verdict in her favor.