Dimock State Bank v. Boehnen

• Decision Date: 27 October 1922
• Docket Number: No. 5068.,5068.
• Citation: 46 S.D. 50,190 N.W. 485
• Parties: DIMOCK STATE BANK v. BOEHNEN.
• Court: South Dakota Supreme Court

46 S.D. 50

190 N.W. 485

DIMOCK STATE BANK

v.BOEHNEN.

No. 5068.

Supreme Court of South Dakota.

Oct. 27, 1922.

Appeal from Circuit Court, Davison County; Frank B. Smith, Judge.

Action by the Dimock State Bank against Leo J. Boehnen. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.H. G. Giddings, of Mitchell, for appellant.

Spangler & Wire, of Mitchell, for respondent.

SHERWOOD, J.

On October 20, 1917, one Fred Gross, a stockholder in Dimock Rochdale Company, together with an agent of that company, secured from Leo J. Boehnen an application for one share of the company's stock, together with Boehnen's promissory note for the sum of $105, dated October 20, 1917, payable on or before December 1, 1918, to Dimock Rochdale Company, at Dimock, S. D. Dimock Rochdale Company was apparently a local co-operative store corporation. November 1, 1917, Dimock State Bank, through its cashier, J. U. Steichen, purchased this note from Dimock Rochdale Company, with 66 other notes, and paid for same. Suit was brought on this note. The case was tried to a jury, and after both sides had offered evidence and rested, plaintiff moved for a directed verdict, which was granted. Judgment entered, and defendant appeals.

[1] Defendant in his answer alleged in substance and effect, and now contends, that he executed the note and application and delivered them to the agent of Dimock Rochdale Company under an oral agreement, and not otherwise, that such note and application should not be effective for 15 or 30 days, and if within that time he traded his farm and decided to remove from Dimock the note should be canceled and returned to him; that within 6 days after so delivering said note he traded his farm and decided to move from near Dimock, and so notified the secretary of Dimock Rochdale Company and demanded his note; and that, if plaintiff bought said note, he bought it with full notice and knowledge of all such facts.

The testimony is very brief, and shows that one Gross, a stockholder, with another person who was an agent of Dimock Rochdale Company, came to defendant's farm near Dimock on the 20th day of October, 1920, and solicited him to buy a share of stock in the company; and plaintiff testifies the following conversation occurred:

“I told them I was trading this farm that I was living on for a half section, and if I made that deal I would not do any trading at Dimock. If I did move, I would not want the stock at all. They said I might as well sign up, and if I did stay it would benefit me, and if I made this deal they would take it back. They agreed to hold the note back 15 or 30 days, *** until they seen whether I made this deal or not. *** I told them I would sign under these conditions, and I did sign right after that talk.”

The witness then says he drove to Mitchell the next day after signing the note, and traded for land five miles west; and that on the 24th or 25th of October he notified Steichen, cashier of Dimock State Bank, that he had signed this note, and the conditions under which he had signed it, and notified Mr. Steichen not to buy the note, as he (Boehnen) did not intend to pay it. On the same day he notified Henry Kirkenbeck, secretary of the Dimock Rochdale Company, that he signed the note on condition that, if he moved away, he would not take the stock, and of the other conditions under which he signed the note, and that he expected them to keep their agreement.

Gross, a witness for plaintiff, on cross-examination testified:

“Before Boehnen signed, the salesman told him he would hold the note up for a while. *** I do not remember how long the salesman said he would hold the note.”

Steichen bought the note November 1, 1920, but denied any talk with defendant, or any notice or knowledge of any defense until after he had bought the note.

The word ‘hold” means to retain or keep and the phrase “hold the note back” means to keep or retain the note. Loyd v. Powers et al., 4 Dak. 62, 22 N. W. 492; 21 Cyc. 438. And one of the meanings of the word “take” is:

“To revoke; retract; as to take back one's promise.” Webster's New International Dictionary, p. 2107.

Fairly interpreting the rather...