Whiffen v. Hollister

• Decision Date: 02 September 1899
• Citation: 80 N.W. 156,12 S.D. 68
• Parties: WHIFFEN v. HOLLISTER.
• Court: South Dakota Supreme Court

80 N.W. 156

12 S.D. 68

WHIFFEN v. HOLLISTER.

Supreme Court of South Dakota

September 2, 1899

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

Action by Fred J. Whiffen against W. C. Hollister. From a judgment for plaintiff, defendant appeals. Reversed.

Davis Lyon & Gates, for appellant. A. Frizzell and Aikens & Judge for respondent.

CORSON P. J.

This is an action on a promissory note executed by the defendant Hollister, to the plaintiff. The defendant admitted the execution of the note, and set up the following defense: That, by an agreement made and entered into in writing between the plaintiff and the defendant, it was agreed that upon the payment of the sum of $35 interest on November 7, 1897, the time of payment of said note should be extended to May 7, 1898, which sum the defendant thereupon paid to the plaintiff upon the said date, and thereby the time of payment of the said note was extended to May 7, 1898, which time was long subsequent to the time of the commencement of this action. And the defendant, by way of counterclaim, alleged that said note was the result of a settlement of an action brought against this defendant and others for the foreclosure of a mortgage, in which the property described in the mortgage was sold, and bid in by this defendant for the sum of $1,000, and a sheriff's certificate of sale was thereupon issued to this defendant on or about May 7, 1892; that by an arrangement between the plaintiff and this defendant the note in suit was given, and said certificate of sale was assigned to the plaintiff as collateral security for the payment of the same, with authority to the plaintiff to sell and dispose of the said property, and apply the proceeds thereof to the payment of the said note; that no redemption was had of the said premises from the said sale, and that plaintiff thereby became entitled to a sheriff's deed thereon on May 8, 1893, which deed would have perfected the title in the plaintiff to said premises, free and clear of all incumbrances; that said premises were on May 7, 1893, of sufficient value, and could have been sold for a sum sufficient, to have paid said note in full; that said plaintiff did not take out a sheriff's deed to said property at the date when he was entitled to the same, nor has he ever done so, and has not sold said premises nor said certificate of sale, but has wholly neglected and still neglects to do so; that since the plaintiff was entitled to the sheriff's deed as aforesaid the said premises have constantly depreciated in value, until they are now of little value, to wit, the sum of $300; and that by reason of the negligence of this plaintiff as aforesaid the defendant has suffered damages to the amount of $700, which sum he hereby offers to set off against whatever sum the court shall find due to plaintiff.

At the close of the evidence the plaintiff moved the court to direct a verdict for the amount claimed, for the reason that defendant had offered no substantial defense to the note. The motion was sustained. Defendant excepted, and now assigns this ruling of the court as error. It appears from the evidence on the part of the defendant that after the note in controversy became due, in May, 1893, an extension of the time of payment was granted by the plaintiff, and that on December 3, 1894, the plaintiff, in a letter bearing that date, in reply to a request for a further extension, uses the following language: "I grant the further extension, and so long as you keep the interest paid, the principal can remain." There was no agreement subsequently made between the parties in reference to any extension of time. It appears from the testimony of the defendant that after the receipt of the letter above mentioned he relied upon the agreement of the plaintiff contained therein, and continued to pay interest upon the note semiannually as the same became due, and that he made the last payment on November 7, 1897, prior to the commencement of the suit in February, 1898. He further testified he would not have retained the loan, or let it run as long as it did, had it not been for the assurance contained in the letter of Mr. Whiffen, above referred to. The appellant contends that this agreement on the part of the plaintiff made in December, 1894, constituted a valid and binding agreement for the extension for the six months ending May 7, 1898, and that, therefore, the plaintiff could not legally commence this action prior to that date. This contention is not tenable, for the reason that no consideration is shown by the agreement, and there is no mutuality between the parties to the agreement, and the time of extension is indefinite and uncertain. It will be observed that the defendant entered into no direct agreement to pay the interest at any particular time or in any particular manner, and he did nothing which he was not already bound to do by his note. This court held in Bunker v. Taylor, 74 N.W. 450, that, in order to constitute a valid consideration, the promise of the debtor must be to do some act which he is not already bound by his note to do. Assuming, therefore, that the defendant had in fact agreed to pay the interest, he contracted to do nothing more than that which he was already obligated to do by the note itself. Again, there was no mutuality in the contract between the parties. The defendant did not bind himself to keep the money for any definite term, and there was in fact no contract between the parties for any...