Corbett v. Clough

• Decision Date: 15 January 1896
• Citation: 8 S.D. 176,65 N.W. 1074
• Parties: CORBETT et al. v. CLOUGH et al.
• Court: South Dakota Supreme Court

8 S.D. 176

65 N.W. 1074

CORBETT et al.

v.CLOUGH et al.

Supreme Court of South Dakota.

Jan. 15, 1896.

Syllabus by the Court.

1. An original superseded complaint, signed and verified by an attorney, is inadmissible as evidence against the plaintiff in support of an issue tendered by the answer to his amended complaint, unless it is first shown clearly that the recitals thereof, sought to be used as an admission, were inserted under his personal direction, or have since knowingly received his sanction and ratification.

2. The writing, “Extended to December 1st, 1891,” placed by the payee thereof on a promissory note, pursuant to an agreement with the maker to extend the time of payment, is a written extension, and presumptive evidence of a consideration, under subdivision 2 of section 3538 of the Compiled Laws.

Appeal from circuit court, Hughes county; Loring, E. Gaffy, Judge.

Action by Carlton Corbett and Frank E. Whitmore, copartners as Corbett & Whitmore, against S. S. Clough and C. L. Millett. Judgment for plaintiffs, and defendant Millett appeals. Reversed.Horner & Stewart, for appellant. Estes & Lambert and John A. Holmes, for respondents.

FULLER, J.

The complaint upon which this action was tried states a cause of action against the defendants jointly, upon the following promissory note: “$1,000.00. Pierre, South Dakota, July 13th, 1891. Three months after date, we promise to pay Corbett & Whitmore, or order, one thousand and no 100 dollars, with interest at the rate of twelve per cent. per annum. Value received. Payable at Citizens' Bank, Pierre, South Dakota. S. S. Clough. C. L. Millett.” Defendant Clough made no appearance in the action. Defendant Millett, for a defense thereto, averred in his answer that he signed the note as surety only, and that the same was accepted by plaintiffs with the express understanding that he should be held only in that capacity; “that, when said note became due and payable, the said plaintiffs, for a valuable consideration, agreed with the defendant S. S. Clough, and without the knowledge or consent of this defendant, to extend the time of payment of said note, and did extend the time of payment of the same, and thereby prevented this defendant from protecting himself from loss on said note, as he then could have done.” The case was tried to a jury, and upon motion of plaintiffs' counsel, at the conclusion of all the evidence, the court directed a verdict in favor of plaintiffs, and against the defendants, for the entire balance found to be due upon said note according to its recitals; and this appeal is by the defendant Millett from a judgment accordingly entered.

Upon the face of the note, and in the hand-writing of one of the payees and respondents, is the following memorandum: “Extended to December 1st, 1891.” The note matured October 13, 1891, and was collaterally secured by a deposit with respondents of bank stock of the value of $1,000, which belonged to Mr. Clough, and which thereafter became practically worthless. As appellant, who signed the note as surety, consented to no extension, he is released from liability, provided there was an agreement between the defendant Clough, as principal, and respondents, as payees, upon a sufficient consideration, to extend the time of payment. After issue was joined, counsel for respondents applied for and obtained leave to file an amended complaint, omitting therefrom the following averment, contained in their original pleading, which was verified by one of respondents' attorneys: “That said note, for a valuable consideration, was extended by said plaintiffs to December 1, 1891, as appears by memoranda upon the face of said note.” As evidence of a consideration for the extension of time, counsel for appellant offered to introduce in evidence the paragraphs of the original complaint containing the above averment, and the ruling of the court in sustaining an...