2 S.D. 91 | S.D. | 1891
In this action the complaint alleges organization of the Madison National Bank, under the “national bank act, ” the appointment of respondent as its receiver, and the assumption of his duties as such; that defendant (appellant) made and delivered his promissory note to said bank for $1,000
The note sued on described in the complaint was the note as originally made for 81,000, — not as it was after alteration; and this note for 81,000, as it was originally, and as made the cause of action in the complaint, defendant did not deny making, but admitted, and then pleaded facts in avoidance, towit, a material and unauthorized alteration. It is true the answer alleges that 1 ‘by reason of said alteration defendant alleges that the note sued on in this action is not his note, and he never made or delivered said note to the payee therein named, or to any person whomsoever;” but this was not such a controversion of the allegation of the complaint that defendant made and delivered to plaintiff the 81,000 note therein described as raised any issue upon that fact. The note sued upon wras the note stated in the complaint as plaintiff’s cause of action, towit, the
The respondent contends, however, that, even conceding that the note was destroyed by the alteration, still, as no fraud was shown on the part of the bank, plaintiff might recover ‘ ‘on the original contract as alleged in defendant’s answer. ” This is correct, except as qualified by the words, ‘ ‘as alleged in defendant’s answer. ” Defendant’s answer undertook to state a defense to plaintiff’s complaint on the note, not to a complaint on the original contract for the sale of the stock. When plaintiff abandoned the note as a cause of action,' — if he did, — and proceeded upon the original indebtedness, it was as though he amended his complaint, stating the substituted cause of action, towit, the original contract. To meet this defendant might amend his answer. It does not appear that either complaint or answer was in fact amended; but, as against plaintiff’s application to be allowed to recover upon the original contract, defendant was not confined to what he had pleaded as a defense to the promissory note, but was entitled to show any defense he might have pleaded and proved in an action on the contract..