National Bank of Commerce of Pierre v. Feeney

• Decision Date: 02 September 1899
• Citation: 80 N.W. 186,12 S.D. 156
• Parties: NATIONAL BANK OF COMMERCE v. FEENEY.
• Court: South Dakota Supreme Court

80 N.W. 186

12 S.D. 156

NATIONAL BANK OF COMMERCE v. FEENEY.

Supreme Court of South Dakota

September 2, 1899

On rehearing. Reversed.

HANEY J.

This is an action to recover possession of personal property for the purpose of foreclosing a mortgage thereon. A verdict was directed for plaintiff, and defendant appealed. When the appeal was first considered, the judgment of the court below was modified and affirmed. 9 S.D. 550, 70 N.W. 874. Upon rehearing, a majority of the court adhered to the former decision. 75 N.W. 896. A second rehearing was granted, and the issues involved have been again carefully considered.

The conclusions previously announced relative to the authority of the sheriff to make a second seizure under the claim and delivery process, those relative to the rulings of the court upon defendant's motion for judgment upon his counterclaim and plaintiff's motion to strike out the counterclaim, and those relative to the knowledge of plaintiff's cashier not being the knowledge of the bank are adhered to, and will not be further discussed.

Defendant admits the execution of the notes and mortgage given to secure the same, as alleged in the complaint, but alleges that the only consideration therefor was the sale by the original payee of the notes to defendant of 200 sheep mentioned and described in the mortgage; that prior to the purchase defendant had not seen or examined the sheep; that the original payee, for the purpose of inducing defendant to purchase, made certain representations and warranted the quality of the sheep; that defendant purchased relying upon such warranty and representations; that there was a breach of the warranty, and other facts showing damage in excess of the amount due upon the notes. It was shown that plaintiff purchased the notes for value, before maturity, and when they were introduced in evidence defendant objected on the ground that the same were incompetent, irrelevant, and immaterial and no foundation laid. The objection was overruled, and defendant excepted. Defendant being on the stand as a witness on his own behalf, these proceedings were had: "Attorney for Defendant: State the contract of sale as made there and as witnessed by you. (Objected to by plaintiff as incompetent, irrelevant, and immaterial, and no defense to this action as the action now stands, which objection being sustained an exception was taken, and such ruling is assigned as error.) Attorney for Defendant: If the court please, I will state for record that the object of this question is to show a contract embracing a warranty of the sheep for which these notes were given, and the same that are described in the chattel mortgage. We will follow this with testimony showing damages resulting from a breach of such warranty, and we claim the right to do this under the note which has been introduced in evidence, and on the ground that such note is a nonnegotiable instrument; also on the further ground that the testimony in this case shows that Mr. Ewert, who was a member of the firm of Clough, Ledwick & Co., and acted as agent for said firm, was also the cashier of the bank, the plaintiff...