Cosand v. Bunker

Citations

• 2 S.D. 294
• 50 N.W. 84
• 1891 S.D. LEXIS 29

Syllabus

<p>1. Where a defendant agreed to pay for the surrender up of a lease “$850, $50 of said sum to be paid by a surrender to plaintiff of his note for $50 then held by defendant, and the balance in money, ” held, that the agreement was to pay $850, $50 of which could- be paid by the note; and that it was not a contract to pay $800 and surrender up the note. Held, further, that a demand for payment of “the money” was substantially a demand for the note also, and a failure to pay authorized plaintiff to sue for the $850, and recover that amount.</p> <p>2. When a note or contract for a sum certain is payable in specific articles of personal property, but no time or place is designated in the note or agreement for the payment, a demand must be made by the creditor of the debtor for payment of the specific articles, and refused, before the creditor is entitled to recover the amount of the note or contract in money.</p> <p>3. In the absence of evidence to the contrary, the law presumes that the amount appearing to be due upon a promissory note is its value.</p> <p>4. Contracts within the statute of frauds, not reduced to writing, are not illegal, but only incapable of being enforced against a defendant without writing, an immunity which a defendant may waive. The failure to object to parol evidence of a contract that the statute prescribed shall be in writing to be binding upon a party, held to be such waiver.</p> <p>5. A defendant is not required to plead the statute in order to avail himself of the protection of it, but may do so by objecting to the introduction of any evidence except such as the statute prescribes.</p> <p>6. Is it necessary, under our statute, that a contract for the surrender of leased premises be in writing, quaere?</p> <p>(Syllabus by the court.</p>