Astoria State Bank v. Markwood

161 N.W. 815, 38 S.D. 437, 1917 S.D. LEXIS 43

Opinions

WHITING, J.

This cause is before us upon rehearing, our former opinion being reported in 37 S. D. 56, 156 N. W. 583. Reference is -made thereto for a statement of the nature of the cause and the facts established by the evidence. It stands conceded that the defenants were not entitled to credit for the payment made by defendants to Windherst but unremitted to plaintiff, unless there was evidence sufficient to warrant the jury in finding that Windherst was either the actual or ostensible agent of plaintiff. The facts were undisputed, and, in our former op-in-ion, <we sustained the judgment of the trial court and held that such court rightfully overruled plaintiff’s motion for a directed verdict, citing’ the case of Reid v. Kellogg, 8 S. D. 596, 67 N. W. 687, wherein was announced the well-established rule that: Where the facts are undisputed hut are such that different impartial minds might fairly draw different conclusions therefrom, they should he submitted to the jury.

[1,2] Upon further consideration, we are of the opinion that, when the cause was first before us, the majority of this court failed to give due consideration to the fact that, upon the indorsement of the note in, question by Windherst to plaintiff, Windherst 'became a guarantor of the payment of such note. In view of the fact that Windherst was . such guarantor and in view of ■the further fact that defendants, by the terms of-the notes themselves — three of which 1"”1 been paid by and returned to them — ■ were fully advised of the contractual relation existing between plaintiff, and Windherst, there was nothing brought to their knowledge which would warrant them in assuming’ that Windherst was the agent of plaintiff’, and there -was no proof of actual agency. It follows that the trial court erred in refusing to direct a verdict for plaintiff as requested.

We do not wish to foe understood as in any manner departing from the holdings of this court in Reid v. Kellogg, 8 S. D. 596, 67 N. W. 687, and McVay v. Bridgman, 21 S. D. 374, 112 N. W. 1138; but we are of the view that the facts of this case differ so materially from those in the above cases, as well as from the facts in the other cases cited by our colleagues in the minority decision, as to clearly distinguish this case from those.

The order and judgment appealed from and the former decision of this court are reversed.