First National Bank v. Sayer

South Dakota Supreme Court

First National Bank v. Sayer

153 N.W. 652, 35 S.D. 581, 1915 S.D. LEXIS 88

CourtSouth Dakota Supreme Court

DecidedJuly 16, 1915

DocketFile No. 3727

StatusPublished

Cited by1 cases

This text of 153 N.W. 652 (First National Bank v. Sayer) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

First National Bank v. Sayer, 153 N.W. 652, 35 S.D. 581, 1915 S.D. LEXIS 88 (S.D. 1915).

Pincite

Opinion

SMITH, J.

Action on a promissory note. The execution of the note is. admitted in the answer, and it was undisputed that it was indorsed and delivered to the plaintiff, and was produced and offered in evidence by plaintiff at the trial. The answer denies that the note was transferred in due course before maturity, and alleges that the same was given as a part of the purchase price of a stallion bought from Champlin Bros’., of Clinton, Iowa, with a warranty of soundness and as a foal-getter, and a breach of such warranty.

At the trial the defendant testified that she bought the stallion from Champlin Bros.; that the note was given as a part of the purchase price; that Champlin Bros, said “they would guarantee 60 per cent., and that he' was perfectly sound. In case he was not sound, they would give her a chance to return the horse and take another horse.” The defendant also offered testimony tending to show a breach of the warranty of. soundness, and that the horse did not comply with the warranty as a foal-getter; also that the horsé- was of small value for breeding purposes, but that his market'value would'probably be $250. Defendant also testified that she still' retained possession of the horse.

The answer does not allege, nor’ does the evidence tend to show,-fraud on the part of Champlin Bros.,, nor does the defendant : by her. answer seek tt> recoup damages for the alleged breach of warranty.

At the close of all the evidence, plaintiff moved for a directed verdict, which was denied by the trial. court. This ruling is assigned as error. Appellant also assigns as error the insufficiency of the evidence to sustain the verdict.' Under the pleadings and evidence in the record, the trial court should have di[583]*583rected a verdict for the plaintiff. If it be assumed that there was a breach of warranty, it does not, under the pleadings and evidence in this case, constitute a defense to- an action on the note. The defendant having failed to allege or prove a valid defense or counterclaim, the issue as to whether the plaintiff was an indorsee in due course became wholly immaterial. He was owner of the note, and entitled to maintain an action thereon, whether an innocent purchaser or not. The principles involved are too elementary to require a citation of authorities.

The order and judgment of the trial court are reversed, and the cause- remanded for further proceedings according to law:

WHITING, J., concurs in result.

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SMITH, J.

Action on a promissory note. The execution of the note is. admitted in the answer, and it was undisputed that it was indorsed and delivered to the plaintiff, and was produced and offered in evidence by plaintiff at the trial. The answer denies that the note was transferred in due course before maturity, and alleges that the same was given as a part of the purchase price of a stallion bought from Champlin Bros’., of Clinton, Iowa, with a warranty of soundness and as a foal-getter, and a breach of such warranty.

At the trial the defendant testified that she bought the stallion from Champlin Bros.; that the note was given as a part of the purchase price; that Champlin Bros, said “they would guarantee 60 per cent., and that he' was perfectly sound. In case he was not sound, they would give her a chance to return the horse and take another horse.” The defendant also offered testimony tending to show a breach of the warranty of. soundness, and that the horse did not comply with the warranty as a foal-getter; also that the horsé- was of small value for breeding purposes, but that his market'value would'probably be $250. Defendant also testified that she still' retained possession of the horse.

The answer does not allege, nor’ does the evidence tend to show,-fraud on the part of Champlin Bros.,, nor does the defendant : by her. answer seek tt> recoup damages for the alleged breach of warranty.

At the close of all the evidence, plaintiff moved for a directed verdict, which was denied by the trial. court. This ruling is assigned as error. Appellant also assigns as error the insufficiency of the evidence to sustain the verdict.' Under the pleadings and evidence in the record, the trial court should have di[583]*583rected a verdict for the plaintiff. If it be assumed that there was a breach of warranty, it does not, under the pleadings and evidence in this case, constitute a defense to- an action on the note. The defendant having failed to allege or prove a valid defense or counterclaim, the issue as to whether the plaintiff was an indorsee in due course became wholly immaterial. He was owner of the note, and entitled to maintain an action thereon, whether an innocent purchaser or not. The principles involved are too elementary to require a citation of authorities.

The order and judgment of the trial court are reversed, and the cause- remanded for further proceedings according to law:

WHITING, J., concurs in result.

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Bluebook (online)

153 N.W. 652, 35 S.D. 581, 1915 S.D. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-sayer-sd-1915.

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