Scott v. Hargens

207 N.W. 65, 49 S.D. 260, 1926 S.D. LEXIS 13

• Court: South Dakota Supreme Court
• Decided: January 23, 1926
• Docket: File No. 5557
• Status: Published

Opinion

GATES, P. J.

This is an action upon a promissory note! given by defendant Chris Hargens to' plaintiff, and indorsed by defendant Claus Hargens. The note was a renewal of h former note sent by plaintiff to R. B. MeCandless for collection. The note in suit was for $1,000 ,dated July 20, 1921, payable July 1, 1922, with interest at 8 per cent, from' July 1, 1921. The defendant Claus Hargens appeals from the judgm'ent rendered against him pursuant to a directed verdict in favor of plaintiff.

Appellant contends that the delivery of the note was conditional, and relies upon Ricords v. Mead, 45 S. D. 617, 189 N. W. 703, and Dimock State Bank v. Boehnen, 46 S. D. 50, 190 N. W'. 485. He testified:

“R. B. MeCandless asked me to sign the note for Chris Hargens, and I said I wouldn’t sign it, and I said I would sign it if Chris Hargens paid the interest on the note. ‘Well,’ Mc-Candless said, ‘sign it, and I will see that Chris pays the interest, and, if he don’t, the note don’t take effect!’ and I finally signed the note, and several weeks afterward I went to MeCandless and asked him, and he said that Chris hadn’t paid the interest yet. I demanded the note back, and he said he had delivered it to Mr. Scott, in California somewhere.”

By. its terms the interest was not due on the note until op-, proximately a year after it was indorsed by appellant. In the Ricords Case the delivery was conditional. Something was to happen in order to authorize the delivery. In the Dimoclc State Bank case there was a dispute as to whether the delivery was conditional, and hence that question was held to. be one for the jury.

In this case, even upon the showing made by appellant, the delivery must be held to ¡be absolute. It .was a delivery with the .understanding that the maker should one year hence pay the interest, and' therefore it was a condition subsequent. The case is, therefore, not one within the provisions of Negotiable Instruments Raw, Sec. 16 (Rev. Code 1919, Sec. 1720).

The judgment is affirmed.