Thompson v. McKee

• Decision Date: 24 February 1888
• Citation: 5 Dak. 172,37 N.W. 367
• Parties: Thompson v. McKee.
• Court: South Dakota Supreme Court

37 N.W. 367

5 Dak. 172

Thompson

v.McKee.

Supreme Court of the Territory of Dakota.

February 24, 1888.

Appeal from district court, Minnehaha county.

Action on a note by J. Leslie Thompson, as receiver of the First National Bank of Sioux Falls, against John McKee, an indorser. Judgment for defendant, and plaintiff appeals.

Francis, J., dissenting.T. B. McMartin, for appellant. Parker Davis, for respondent.

SPENCER, J.

This is an action upon a promissory note bearing date April 21, 1885, executed by the defendant to the order of the First National Bank of Sioux Falls for $1,000. The plaintiff is the receiver of said bank. The incorporation of the bank, execution and delivery of said note by the defendant, and the appointment of plaintiff as receiver, is admitted by the answer. As matters of defense, it is alleged in the answer, in substance, that the note in suit was given in renewal or to take place of another of like amount, made April 8, 1884, between the same parties; that said last-mentioned note was given for the amount of a draft which plaintiff had cashed in June, 1884, for one Henry Wolfe, and on which said defendant's name appeared as indorser; that said defendant went with said Wolfe to said bank for the purpose of identifying him, and while there, and when Wolfe presented said draft, the cashier asked defendant to indorse it, which he at first declined to do, but upon the cashier's statement to him that he only desired his name for the purpose of showing who identified Wolfe, and that he should not be held liable on said draft if he indorsed it, he did put his name on its back; that the first note was given by said defendant to the bank with the understanding and agreement that defendant's liability thereon should not be greater than it was on said draft, and that in any event he should not be called upon to pay more than $600 on said note; and that the note in suit was given under similar circumstances, and with a like agreement and understanding between the president and cashier of said bank and the defendant, and in renewal of said first note. Upon the trial of the action, the plaintiff produced the note in suit, read it in evidence, proved he found it among the assets of the bank when he took possession, that payment of it had been duly demanded of the defendant, and rested his case. Plaintiff then objected to the admission of any evidence on the part of the defendant, on the ground that the answer did not state facts sufficient to constitute a defense. The objection was overruled, and the plaintiff excepted. The defendant was sworn in his own behalf, and testified, substantially, to the facts as alleged in the answer. At the close of his testimony the defendant rested, and thereupon the plaintiff moved the court to direct the jury to return a verdict for the plaintiff, upon the ground, among others, that the facts as established by defendant's evidence did not constitute a defense; which motion was also overruled, and the plaintiff excepted. No other evidence was offered by the defendant, and at the close of all the evidence the plaintiff renewed his motion for the direction of a verdict in his favor, upon the grounds heretofore stated; which was again denied, and plaintiff excepted. The case was then submitted to the jury, under instructions from the court, and the jury returned a verdict in favor of the defendant. The plaintiff moved for a new trial, upon the grounds, among others, stated in the motions aforesaid; which motion was denied, and the plaintiff appealed to this court.

1. There is no pretense that there was any ambiguity about the draft, or the indorsement of it by the defendant, which requires evidence to explain its meaning; nor is there any claim that it was indorsed by the defendant through mistake, fraud, or inadvertence. On the contrary, the draft seems to have been in the usual form of such instruments, and was indorsed by the defendant, unaccompanied by any...