Profit Counselors, Inc. v. Knight, 10292

• Court: Supreme Court of South Dakota
• Writing for the Court: BIEGELMEIER
• Citation: 82 S.D. 350,146 N.W.2d 60
• Parties: PROFIT COUNSELORS, INC., a Corporation, Plaintiff and Appellant, v. Floyd E. KNIGHT, d/b/a Knight Construction Company, Defendant and Respondent.
• Docket Number: No. 10292,10292
• Decision Date: 03 November 1966

Page 60

146 N.W.2d 60

82 S.D. 350

PROFIT COUNSELORS, INC., a Corporation, Plaintiff and Appellant, v. Floyd E. KNIGHT, d/b/a Knight Construction Company,

Defendant and Respondent.

No. 10292.

Supreme Court of South Dakota.

Nov. 3, 1966.

Ronayne, Richards & Dobberpuhl, Aberdeen, for plaintiff and appellant.

Bicknell, Holland & Delaney, Webster, for defendant and respondent.

BIEGELMEIER, Judge.

Plaintiff's action was based on a check of defendant's dated June 30, 1961 for $1,250.00, payment of which had been stopped by defendant. Defendant's answer alleged the check had been paid by another check dated July 7, 1961. At the trial the court admitted oral evidence to show the June 30th check was given in payment of the third week of employment of plaintiff by defendant under a printed Operating Agreement. By paragraph 11 thereof plaintiff's services could be terminated at the end of any calendar week. Defendant's evidence was that he had terminated this agreement at the end of the third week and had executed the check sued on in full payment of the services received to that date and because he was dissatisfied he had terminated such services; he then stopped payment on this check and after some discussion in the ensuing week he executed and delivered the July 7, 1961 check as payment of the June 30, 1961 check and all claims of the plaintiff. The July 7th check was paid in full. The jury returned a verdict for the defendant and plaintiff appealed from the judgment. While the defendant also alleged a counterclaim, we will first deal with the issues involved in the complaint and answer.

Plaintiff's brief does not refer by number or to the page of the record where the assignments of error appear which present the first question (SDC 1960 Supp. 33.0743(4)) stated to be:

'I. THE COURT ERRED IN PERMITTING DEFENDANT TO TESTIFY THAT THE CHECK SUED UPON HAD BEEN DISCHARGED BY THE EXECUTION AND DELIVERY OF ANOTHER CHECK'.

This evidence was as indicated above. Appellant asserts 'the trial court erred in (1) admitting such parol evidence'.

It appears it was the custom of plaintiff when each of these weekly payments of $1,250.00 was made to have the defendant sign a statement as follows:

'The above amount is due and owing for services satisfactorily rendered to the client without defense, counterclaim, offset or other deductions'.

Plaintiff's argument is defendant's oral testimony contradicted this written statement and therefore was inadmissible and quotes Kindley v. Williams, 76 S.D. 225, 76 N.W.2d 227, that

'where a contract which has been reduced to writing * * * is complete, clear, and unambiguous in its terms and contains mutual contractual covenants, or where the consideration consists of a specific and direct promise to do or not to do certain things, this part of the contract * * * cannot be changed or modified by parol or extrinsic evidence'.

Putting aside the evidence of defendant that he signed these papers as a formality for plaintiff's Chicago office to close out the project and with the understanding that it was final payment for the project, the paper so signed was a receipt and not a contractual instrument. Greve v. Bisson, 69 S.D. 208, 8 N.W.2d 859, involved a similar writing. There plaintiff signed a statement that she did not have any money coming from Bissons; that she was not to get any pay; this was the receipt in full; she had no claim against them and they were not indebted to her. It was conceded there that this instrument was not based upon a consideration--that is, plaintiff Greve did not receive any consideration for executing the instrument. Here defendant received no consideration for the instrument as he gave the July 7, 1961 check to plaintiff at that time. His testimony was that he had terminated the services of plaintiff at the end of three weeks which the Operating Agreement expressly gave him the authority to do. If that were true, he did not owe plaintiff for both the June 30th and July 7th amounts. As was said in the Greve opinion the instrument signed by defendant here

'purports to change nothing; it seeks only to establish or recite the fact that the defendants' obligation (here plaintiff's) had been fulfilled * * * Manifestly, the rulings of the trial court did not prejudice appellant. The document is without conclusive effect as between the parties and only had a place as a part of the evidence as a whole to be considered by a jury in resolving the conflicts in the record'.

The evidence therefore was admissible and to be considered by the jury with all the other evidence. See also Bruns v. Light, 74 S.D. 418, 54 N.W.2d 99, and Hoidal v. Runchey, 55 S.D. 171, 225 N.W. 299. Without setting forth the terms of the Operating Agreement, it appears to be an employment agreement of such sketchy and indefinite provisions as to permit, if not require, oral evidence to explain it. This disposes of that question, but we have not overlooked plaintiff's claim that 'when Plaintiff moved the Court for an order striking Defendant's Answer, the Motion should have been granted'. The answer alleged payment and therefore stated a good defense. Green v. Hughitt School Twp., 5 S.D. 452, 59 N.W. 224; Fall v. Johnson, 8 S.D. 163, 65 N.W. 909. As all of plaintiff's requested instructions were given by the trial court and plaintiff took no exceptions to the court's charge to the jury of applicable law they became the law of the case. SDC 1960 Supp. 33.1318; Keller v. Merkel, 73 S.D. 477, 44 N.W.2d 208. The judgment for defendant dismissing plaintiff's claim on the stopped payment check must be affirmed.

Plaintiff-appellant states the other claim of error as:

'II. THE COURT ERRED IN PERMITTING THE JURY TO CONSIDER DEFENDANT'S ALLEGATIONS OF FRAUD, MISREPRESENTATION, AND UNDUE ADVANTAGE SINCE THERE WAS INSUFFICIENT ADMISSIBLE EVIDENCE ON WHICH TO PRESENT A QUESTION OF FACT ON THOSE ISSUES.'

Turning to another part of appellant's brief, we find error claimed in '(2) refusing to strike any mention of fraud, misrepresentation or undue advantage from the pleadings * * * (3) refusing to direct a verdict in favor of Plaintiff on its Complaint and against the Defendant on his Counterclaim * * * (4) refusing to grant Plaintiff's Motion for Judgment N.O.V.; and (5) refusing to grant Plaintiff's Motion for New Trial'. Again this appears without a reference to the number and page of the settled record to the assignment or assignments of error which it is claimed present the question argued. See SDC 1960 Supp. 33.0743(4), Supreme Court Rule 71 of 1939. Under this Rule it is counsel's duty to direct the court to some assignment which presents the question or questions. It appears the court may conclude the question involves the counterclaim. A search of the assignments of error in the settled record however discloses:

'36. That the Court erred in denying appellant's motion to direct verdict in favor of plaintiff on its complaint and against the defendant on its counterclaim as shown on page 240 of the transcript * * *

'40. That the Court erred in denying Plaintiff-Appellant's (oral) motion for new trial as found in the records * * *

'41. That the Court erred in denying Plaintiff-Appellant's motion for Judgment Notwithstanding Verdict as found in the records'.

An assignment of error need follow no stated form but must briefly and plainly point out the error alleged to exist. If insufficiency of the evidence to justify the verdict or other decision is assigned, if must state the particulars in which the evidence is claimed to be insufficient. SDC 1960 Supp. 33.0735; Davis v. C. & J. Michel Brewing Company, 31 S.D. 284, 140 N.W. 694. See also, Stoecker v. Stecker, 74 S.D. 415, 54 N.W.2d 171; J. R. Watkins Co. v. Beisel, 78 S.D. 413, 103 N.W.2d 333, and cases cited. As a review of the motion for judgment n.o.v. compels as affirmance, we have chosen to consider that record. Such review is governed by true principles of law rather than the law set forth in later instructions. Barnhart v. Ahlers, 79 S.D. 186, 110 N.W.2d 125; Cromwell v. Hosbrook, S.D., 134 N.W.2d 777.

Assuming the motion for a new trial was before the trial court on plaintiff's motion for judgment n.o.v. ¹ it cannot be enlarged beyond the reasons or scope of its purport or contents. A motion for judgment n.o.v. relates back and is based on the moving party's motion for a directed verdict at the close of the testimony, SDC 1960 Supp. 33.1705, Barnhart v. Ahlers, 79 S.D. 186, 110 N.W.2d 125, and the grounds urged in support thereof. Parham v. Dell Rapids Township, 80 S.D. 281, 122 N.W.2d 548. Cf. Lindenberg v. Folson, (N.D.1965), 138 N.W.2d 573 and Erhardt v. Gold Seal Chinchillas, Inc., (N.D.1966), 144 N.W.2d 744. This court has set the guidelines in several opinions; quotations from two will suffice.

'Our rules require a party so moving for a direction to so specifically point out the grounds of law or...