Cosand v. Bunker
| Decision Date | 20 October 1891 |
| Citation | 2 S.D. 294,50 N.W. 84 |
| Parties | Cosand v. Bunker. |
| Court | South Dakota Supreme Court |
1. Where a defendant agreed to pay for the surrender up of a lease “$850, $50 of said sum to be paid by a surrender to plaintiff of his note for $50, then held by defendant, and the balance in money,” held, that the agreement was to pay $850, $50 of which could be paid by the note; and that it was not a contract to pay $800 and surrender up the note. Held, further, that a demand for payment of “the money” was substantially a demand for the note also, and a failure to pay authorized plaintiff to sue for the $850, and recover that amount.
2. When a note or contract for a sum certain is payable in specific articles of personal property, but no time or place is designated in the note or agreement for the payment, a demand must be made by the creditor of the debtor for payment of the specific articles, and refused, before the creditor is entitled to recover the amount of the note or contract in money.
3. In the absence of evidence to the contrary, the law presumes that the amount appearing to be due upon a promissory note is its value.
4. Contracts within the statute of frauds, not reduced to writing, are not illegal, but only incapable of being enforced against a defendant without writing, an immunity which a defendant may waive. The failure to object to parol evidence of a contract that the statute prescribed shall be in writing to be binding upon a party, held to be such waiver.
5. A defendant is not required to plead the statute in order to avail himself of the protection of it, but may do so by objecting to the introduction of any evidence except such as the statute prescribes.
6. Is it necessary, under our statute, that a contract for the surrender of leased premises be in writing, quoere?
Appeal from circuit court, Minnehaha county; Frank R. Aikens, Judge.
Action by Charles Cosand against Lydia Bunker, to recover possession of leased premises, etc. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.McMartin & Carland, for appellant. Davis, Lyon & Gates, for respondent.
This was an action to recover the sum of $850 for the surrender of certain leased premises and sale of an interest in personal property. Verdict and judgment for plaintiff. Motion for a new trial made and overruled. Defendant appeals to this court from judgment and order. The plaintiff, in his complaint, alleges that in March, 1888, he leased certain real estate and personal property in Minnehaha county from defendant for a term of three years; that in October, 1889, defendant agreed that, if plaintiff would surrender to her the possession of all of said premises, and sell to her his undivided one-half interest in the personal property on said premises, (with certain exceptions,) she would pay him therefor the sum of $850, $50 of said sum to be paid by the surrender to the plaintiff of his promissory note for that sum, held by defendant, and the balance in money; and that thereupon plaintiff did vacate and surrender the possession of said premises, and delivered to defendant his undivided interest in said personal property. The plaintiff also set out in his complaint a prior agreement, alleged to have been made in August, 1889, in which he agreed on his part to surrender up to the defendant the leased premises for the sum of $500, which defendant agreed to pay. All that appears from the complaint and evidence to have been done under this agreement was the payment to plaintiff of the sum of $5 by an agent of defendant. All the allegations of the complaint were denied, except the execution of the lease, and a qualified admission of the alleged August agreement to pay $500 for the surrender of a part of the leased premises. On the trial, the facts as alleged in plaintiff's complaint were substantially sustained by the evidence introduced on the part of plaintiff.
1. It is contended by the counsel for defendant that there was no testimony in the case showing that defendant agreed to pay $850 in money, and hence the judgment for $850 is erroneous. It is alleged in the complaint that defendant promised and agreed to and with the plaintiff that she would pay him for the surrender of said lease and undivided interest in personal property the sum of $850, $50 of said sum to be paid by surrender to plaintiff of his note for $50, then held by defendant, and the balance in money. It is stated in the bill of exceptions that “the undisputed testimony of the plaintiff was that $50 of the $850 was to be paid by a surrender of a note for $50, then held by defendant against the plaintiff.” From the complaint and statement in the abstract we are of the opinion that the agreement was to pay $850, a part of which could be paid by a surrender up of the note; and that it was not a contract, as contended by counsel for defendant, to pay $800, and surrender up the note. The sum to be paid was fixed absolutely at $850, with the privilege on the part of defendant to pay $50 of that amount by a surrender up of the note held by her against the plaintiff. The defendant insists that no demand was made upon the defendant for this note, and therefore plaintiff could not recover the $50 that could have been paid by the note of plaintiff held by defendant. The rule no doubt is that when a note or contract is for a certain sum, payable in specific articles of personal property, and no time or place is designated in the note or agreement for the payment, a demand must be made by the creditor of the debtor for payment of the specific articles, and refused, before he is entitled to recover the amount of the note or contract in money. 2 Pars. Cont. p. 649; Lobdell v. Hopkins, 5 Cow. 516;Vance v. Bloomer, 20 Wend. 195;Rice v. Churchill, 2 Denio, 145. But we think such a demand was alleged and proved in this case. In the fifth paragraph of the complaint it is alleged “that the defendant has not paid said sum of eight hundred and fifty...
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