Rapp v. Giddings

• Decision Date: 06 January 1894
• Citation: 4 S.D. 492,57 N.W. 237
• Parties: RAPP v. GIDDINGS.
• Court: South Dakota Supreme Court

4 S.D. 492

57 N.W. 237

RAPP

v.GIDDINGS.

Supreme Court of South Dakota.

Jan. 6, 1894.

Syllabus by the Court.

1. Where payment is made by check, which recites on its face, “in full of all demands,” such words will constitute a receipt in full, as against the payee, only when it is shown that he had knowledge of the presence of such words, or facts are shown which in law would charge him with such knowledge.

2. The possession of such knowledge held, upon the evidence in this case, to be a question for the jury.

3. An instruction is properly refused which assumes and is predicated upon a fact, as established, which the evidence leaves in dispute.

Appeal from circuit court, Brown county; A. W. Campbell, Judge.

Action by Frank Rapp against C. M. Giddings to recover on account. Plaintiff had judgment, from which, and an order denying a new trial, defendant appeals. Affirmed.F. A. Luse, for appellant. F. E. Campbell and H. H. Potter, for respondent.

KELLAM, J.

Respondent sued appellant to recover an alleged balance of a threshing bill. Appellant contended that his contract was to pay but a part of the bill; that his tenant was to pay the larger part of it, and that the agreement was so made between respondent himself and the tenant; that, after the work was done, respondent and himself agreed upon the amount due from him, and he paid it. The case was tried before a jury, who gave the plaintiff a verdict for the unpaid balance of his bill, and judgment was entered accordingly. Defendant appeals from the judgment, and an order denying a new trial. The question whether the credit was given to appellant for the full amount of the threshing bill, concerning which the evidence was conflicting, is set at rest by the verdict of the jury. They held him liable. The fact or the amount of the payment by appellant is not disputed. It was by check. The check was lost, but it was satisfactorily proved that upon its face were written these or equivalent words: “In full of all demands to date.”

The first assignment of error is the refusal of the court to instruct the jury to return a verdict for defendant “for the reason that the evidence showed that a certain amount was paid in full satisfaction of the claim, and a receipt in full given, and that there was no evidence to show that it was given by mistake or fraud.” This was not error, for whether the testimony strongly preponderated in favor of appellant upon that question, or not, there was sufficient contrary evidence to require the question to go to the jury. Respondent testified that when he received the check he distinctly told the appellant that he should hold him for the balance of the bill, and that appellant replied that if he sued him, and got judgment, it would be good. This certainly went to disprove the theory that the amount so paid was received in full settlement of the bill.

It is next assigned as error that the court refused appellant's request to charge the jury “that, in order to overcome the effect of a check containing a receipt in full, the evidence must be of a clear and satisfactory nature, or that by some mistake or fraud the check was not...