Kindle v. First National Bank

195 N.W. 829, 46 S.D. 645, 1923 S.D. LEXIS 107

• Court: South Dakota Supreme Court
• Decided: November 15, 1923
• Docket: File No. 5387
• Status: Published

Opinion

GATES, J.

The important issue in this case was .whether plaintiffs had' paid defendant bank a note of $2,500. Upon conflicting evidence the jury found that it had not been paid and returned a verdict for the bank. From the judgment and order denying new trial, plaintiffs appeal.

Both plaintiffs testified that they went to the bank on February 27, 1920, after banking hours, and made the payment in currency, and that thereupon the president of the bank prepared and they executed a note and mortgage -for $5,500. This mortgage was dated February 28, 1920, and was acknowledged March 10, 1920. The testimony on the part of the bank tended to show that it was executed on March- 10 and not on 'February 27. It appeared that the note and mortgage had been prepared in Rock Island, 111., pursuant to a written application for a loan theretofore made by plaintiffs and sent by the bank to Rock Island. The mortgage was. offered in evidence for the purpose of showing that plaintiffs erred in fixing the date of the execution of this mortgage as February 27. It was received -without objection. At the same time a letter purporting to come from the Rock Island people to the president of the bank, dated February 28, 1920, and referring to the m'ortgage as being sent therewith was offered in evidence. This was objcted to as immaterial and that no foundation had been laid. The overruling of this obj action is the only alleged error that is argued b'y appellants’ counsel.

From the record we do not think that the .court erred in admitting this letter in evidence without proof identifying the signatures of the writers. In the first place, the purpose for which the letter was offered was a collateral matter to the real issue. In the next place, the bank president had testified without objection to a course of business with the Rock Island people in the matter of loans made through him.; that he sent appellants’ application for a loan to them, and that the mortgage and letter were received in reply to that application. As to the materiality of the letter, the very argument that appellants’ counsel advances in support of the contention that the receipt of the letter constituted prejudicial error refutes his argument that it was not material.

The judgment and order appealed from- are affirmed.

Note. — Reported in 195 N. W. 829. See, Headnote (1), American Key-Numbered Digest, Evidence, Key-No. 378(1), 22 C. J. Sec. 1148; (2) Evidence, Key-No. 378(1), 22 C. J. Sec. 1161; (3) Bills and notes, Key-No. 611, 8 C. J. Sec. 1355.