First National Bank v. Spear

Citations

• 12 S.D. 108
• 80 N.W. 166
• 1899 S.D. LEXIS 84

Syllabus

<p>1. Where plaintiff moves to amend his complaint and judgment by striking out one of the causes of action, reducing the amount of the judgment, which is granted, and the record of such proceedings is duly certified to the appellate court on its order, appellant is not entitled to strike out respondent’s additional abstract containing such proceedings, on the ground that they are not authenticated nor contained in the bill of exceptions.</p> <p>2. In an action on non-negotiable notes,plaintiff establishes aprima facie case by introducing the notes in evidence, and is not required to negative Hie maker’s defense of failure of consideration as a part of plaintiff’s main case, though the facts on which such defense is based are in effect admitted in the reply.</p> <p>3. Whore non-negotiable notes, payable at different dates, are given in consideration of stock in a corporation and a lease of certain ground, which lease is to be delivered on full payment of the notes, such payments are independent conditions of the contract, and no tender of the stock and lease is required beforo suit on the notes, if brought prior to the maturity of the last note, but, the payee having failed to sue until after the last note matures, the payment of the notes and the delivery of the slock and lease become mutual dependent covenants, and the payee is not entitled to recover without proof of ability and willingness to perform on its part.</p>