12 S.D. 68 | S.D. | 1899
This is an action on a promissory note executed by the defendant, Hollister, to the plaintiff. The defendant admitted the execution of the note, and set up the fol lowing defense: That, by an agreement made and entered into in writing between the plaintiff and the defendant, it was agreed that upon the payment of the sum of $35 interest on November 7, 1897, the time of payment of said note should be extended to May 7, 1898, which sum the defendant thereupon paid to the plaintiff upon the said date, and thereby the time of payment of the said note was extended to May 7, 1898, which time was long subsequent to the time of the commencement of this action. And the defendant, by way of counterclaim, alleged that said note was the result of a settlement of an action brought against this defendant and others for the foreclosure of a mortgage, in which the property described in the mort
At the close of the evidence the plaintiff moved the court to directa verdict for the amount claimed, for the reason that defendant had offered no substantial defense to thenote. The motion was sustained. Defendant excepted, and now assigns this
To sustain defendant’s counterclaim, he was shown a certificate of sale, attached to which appeared the following assignment: “I hereby assign the annexed certificate of purchase to Fred J. Whiffen as collateral security to one promissory note for $1,000, payable in one year from date, at 7 per cent, interest, which note bears even date herewith. Dated May 5th, 1892. W. C. Hollister.” And in regard to this certificate of sale the defendant testified: “I never had it, but the understanding was Mr. Whiffen was to have it, — to be assigned over. The certificate was taken in my name in pursuance of a foreclosure sale in which I had bid off the property for $1,500, and I turned this over to Mr. Whiffen’s representative.” The witness was then asked: “What agreement, if any, was made between yourself and the plaintiff, through his representative, at that time?” Plaintiff objected to the question as incompetent and immaterial, unless it -was first shown that the agreement was in writing. Objection sustained, and defendant excepted. Other similar questions were propouded to the wit
It is now insisted by respondent that the answer did not state facts sufficient to constitute a counterclaim, and therefore that this evidence was inadmissible under the answer; but this was not the ground of the objection in the court below. Had such an objection been made in the court below, the answer, if insufficient, might have been amended at the trial, or the evidence might have been admitted, and the answer subsequently amended to make it conform to the truth. But, as respondent’s objection was based upon the theory in the court below that the evidence of the contract was inadmissble unless the same was in writing, that is the only theory that can be advanced on the part of the respondent in this court. Noyes v. Brace, 9 S. D. 603, 70 N. W. 846, This court, in D. M. Osborne & Co. v. Stringham, 1 S. D. 406, 47 N. W. 408, says: “Great latitude, however has been allowed in the admission of parol evidence, to prevent fraud or injustice. For this purpose parol evidence has been admitted of all the circumstances of the transactions, — the subject matter, the parties, the consideration, — to prove a contemporaneous, verbal agreement not directly contradictory of the written one, to supply deficiencies and omissions, so as to carry out the true intent of the agreement, and, generally, to save a party from injustice.” The evidence sought to be introduced in this case tended to