4 S.D. 207 | S.D. | 1893
This was an action upon a contract executed by the defendants, which reads as follows: ‘‘Agreement between the undersigned, members of the board of directors of
Defendants admitted in open court that the studies were to be shipped to D. W. Donaldson, and that the board of directors of Spirit Lake township consisted of eight persons. Evidence was given tending to prove, and not controverted, the facts alleged in the complaint, and that the studies were shipped to Donaldson; that they arrived at DeSmet; and that Donaldson refused to receive them; and that they were still in the freight office of the railway company, at DeSmet. The plaintiff objected to any evidence on the part of the defendants tending to prove the affirmative facts alleged in the answer, on the -ground that the same did not state facts sufficient to constitute a defense to the action. The court overruled the objection, and the evidence was admitted, under the objection of the plaintiff. This ruling of the court was assigned as error, but, as substantially the same question was raised on the motion to direct a verdict, we need not now stop to consider it.
At the close of the evidence in the case, counsel for the plaintiff moved the court to direct a jury to return a verdict for the plaintiff. The court denied the motion, and the ruling of the court denying the same is assigned as error. In denying this motion, we are of opinion that the court erred. The facts alleged in the complaint were sustained by undisputed evidence, and the facts alleged in defendants’ answer and proven on the