Rudolph v. Hewitt

• Decision Date: 02 September 1899
• Citation: 80 N.W. 133,11 S.D. 646
• Parties: RUDOLPH v. HEWITT.
• Court: South Dakota Supreme Court

80 N.W. 133

11 S.D. 646

RUDOLPH v. HEWITT.

Supreme Court of South Dakota

September 2, 1899

Appeal from circuit court, Lincoln county; Joseph W. Jones, Judge.

Action by Martin E. Rudolph against John W. Hewitt. Judgment for defendant. Plaintiff appeals. Affirmed.

M. E Rudolph and O. S. Gifford, for appellant. C. B. Kennedy, for respondent.

HANEY J.

It is alleged in the complaint that on July 27, 1891, defendant for value received, made, executed, and delivered to plaintiff his promissory note, whereby he promised to pay the plaintiff or order, one year after date, $100, for value received, with interest at 10 per cent. per annum from date until paid, payable annually; that the plaintiff is still the owner and holder of such note, and the same is wholly unpaid. In the answer defendant admits the execution and delivery of the note sued upon, and alleges that such note was procured by the plaintiff from the defendant without any consideration and by fraud and misrepresentation. The circumstances attending its procurement, as alleged in the answer, may be thus summarized: On December 31, 1888, Mary E. North owned a certain lot in the city of Canton. On that day she and her husband executed and delivered to defendant their promissory note for $100, due July 1, 1890, to secure the payment of which the Norths gave defendant a mortgage upon the above-mentioned real estate. Afterwards defendant sold transferred, and delivered this note to plaintiff by an indorsement wherein he waived demand and notice of protest. July 18, 1891, the Norths deeded the above-described realty to the wife of plaintiff. The consideration of this deed was an agreement between plaintiff and the Norths that he would take the realty in full payment of the note made by the Norths to the defendant, and that he would assume and pay a mortgage debt upon the realty to the Canton Building & Loan Association. On July 27, 1891, plaintiff represented himself to be the owner of the note made by the Norths to defendant and presented such note to the defendant for payment, representing to him that it had not been paid or satisfied, and demanded that defendant pay on account of the guaranty on the back thereof, claiming that defendant was liable upon such guaranty; and the defendant, having no knowledge that such note had been paid, and relying upon plaintiff's representation that it had not been paid, and believing that it had not been paid, and that he was liable to pay the same by reason of the guaranty, and with no other consideration, executed and delivered to plaintiff the note in suit. As a part of the same transaction, defendant and plaintiff executed a contract in the words and figures following: "This agreement, made this 27th day of July, A. D. 1891, by and between M. E. Rudolph, one part, and J. W. Hewitt, of the second part, witnesseth that whereas, the said J. W. Hewitt sold and guarantied to M. E. Rudolph a certain promissory note and mortgage of J. M. North and Mary E. North; and whereas, they have failed to pay the same, and the said M. E. Rudolph is about to take a deed for said premises: Now, it is agreed that if the said J. W. Hewitt will find a buyer, and help to sell said property, within one year from date hereof, to a good responsible purchaser, then the note given this day to said M. E. Rudolph for the sum of $100 to be void; but, if such purchaser is not found within said time, then the said note to be in full force and virtue. The amount so due on said property is $445, with interest thereon at 10 per cent. from date." Defendant made this contract without knowledge that the North note had been fully paid, relying upon the representations of the plaintiff that it had not been paid. When the note sued upon and aforesaid contract...