Whitbeck v. Sees

• Decision Date: 22 January 1898
• Citation: 73 N.W. 915,10 S.D. 417
• Parties: WHITBECK v. SEES.
• Court: South Dakota Supreme Court

10 S.D. 417

73 N.W. 915

WHITBECK

v.SEES.

Supreme Court of South Dakota.

Jan. 22, 1898.

Appeal from circuit court, Charles Mix county; E. G. Smith, Judge.

Action by A. C. Whitbeck against Jared Sees for damages. From the action of the court in sustaining an objection to the introduction of any evidence under the complaint, and in rendering a judgment for defendant, plaintiff appeals. Reversed.S. H. Wright, for appellant. W. F. McCall, for respondent.

FULLER, J.

At the trial of this cause the court sustained an objection to the introduction of any evidence on the part of plaintiff on the ground that his complaint failed to state facts sufficient to constitute a cause of action. Judgment for costs in favor of defendant was entered upon a directed verdict, and plaintiff appeals.

It appears from the complaint: That two instruments in writing, bearing date February 6, 1896, purporting to be warrants, numbered 145 and 146, drawn on Hamilton school district, in Charles Mix county, for $70 and $72.50, respectively, in favor of O. A. Osmandson, were each upon that day indorsed by the respondent, in his official capacity, as follows: “The within order presented for payment this day, and the same not paid, for want of funds. Castalia, South Dakota. Dated Feb. 6, 1896. [Signed] Jared Sees, Treasurer.” That at the same time, and over his official signature, he executed and delivered to said Osmandson the following: “To Whom It May Concern: This is to certify that warrants Nos. 145 and 146 were issued this day at a specially and regularly called meeting of the school board, and will be paid as soon as funds are at hand.” That on account of the foregoing indorsement and certificate of respondent, and not otherwise, appellant was on the 10th day of February, 1896, induced to purchase said warrants, paying the full apparent value thereof, “believing that the same were regular, valid, and a proper charge against the said school district, but that plaintiff would not have made such purchase in the absence of the assurances contained in said indorsements and certificate, and that plaintiff was misled by the same into making the purchase of said warrants. Plaintiff further says that he is informed, believes, and alleges the fact to be, that the said defendant and the payee named in said warrants knew that they were illegal, and that their payment could not be enforced, and that they confederated together to ‘put up a job,’ and raise money on said warrants, regardless of who might suffer in consequence of their action. Plaintiff further says that although he was misled into the purchase of said warrants, and in the payment of full value thereof, in consequence of the acts of said defendant, and his said indorsements and certificate, on the date set forth in paragraph 5, the said warrants were not legally issued, but, on the contrary, were issued without authority of law; that they were not issued at a regular meeting of the board, or any legal special meeting of the board; that there was not present a quorum of the officers of said school district, nor was the chairman present, but he refused to sign said warrants, and the defendant and the clerk had an outsider to sign as chairman, as set out in Exhibit A, and that there was no...