Barnard & Leas Manuf'g Co. v. Galloway

Citations

• 5 S.D. 205
• 58 N.W. 565
• 1894 S.D. LEXIS 47

Syllabus

<p>1. Whore a motion for a new trial is made after the entry of judgment, and the insufficiency of the evidence to sustain the decision is not assigned as error, it will be presumed that both the findings and decision are justified by the evidence, when the appeal is from the judgment only, as errors occurring after judgment are not presented for review.</p> <p>2. An unexecuted agreement to take a mortgage as security for the identical debt, on premises upon which a claimant is entitled to a lien for labor and material furnished, is not sufficient to defeat a mechanic’s lien, when, in the same contract, the parties agree in express terms that the right should not thus be waived, and it further affirmatively appears that the owner, by alienating the property, has made a compliance on his part as to the execution of the mortgage impossible.</p> <p>3. Where the parties had entered into a written contract for the erection and furnishing of a mill, parol evidence of a subsequent conversation between the parties, tending to show that in and by such conversation it was arranged and agreed that the party who built the mill would accept the obligation of a corporation to bo subsequently organized, in the place of that of the original promisor, and substitute the one for the other, is inadmissible; such agreement being unexecuted and without consideration.</p> <p>(Syllabus by the Court.</p>