Green v. Hughitt School Twp.

Citations

• 5 S.D. 452
• 59 N.W. 224
• 1894 S.D. LEXIS 79

Syllabus

<p>1. A general denial in a verified answer cannot be stricken out on motion as sham. A party is entitled to trial of the issues raised by a verified general denial in the manner provided by law, and that issue cannot, ordinarily, be tried on affidavits or motion to strike it out as sham.</p> <p>2. Neither can a court in this state strike out a defense in an answer because it is apparently inconsistent with some other defense pleaded in the same answer.</p> <p>3. There is no variance between the proof and the allegations of a defense denominated a defense of payment, when all the facts constituting such payment are set out in such defense, though such defense appears more properly to constitute an accord and satisfaction. The nature of the defense is to be determined from the facts pleaded, and not from the name given to it by the pleader.</p> <p>4. The refusal by the court to give an instruction requested which correctly states the.law, is not prejudicial error where the court, in his instructions to the jury, on his own motion gives an instruction substantially embodying the law as contained in the instruction requested.</p> <p>5. A ruling of the court sustaining the objection to evidence given after the question asked has been answered is not prejudicial error when the answer is not stricken out; and especially is this so when the evb flence objected to is subsequently given in full in the case.</p> <p>6. Where school-township officers issued a school-township warrant in payment of a contract for furniture, and on the next day, and before any transfer of said warrant, issue school-township bonds for the amount of such warrant to the payee named in such warrant, who accepts and retains the same, the receipt and acceptance of such bonds constitutes a payment, or an accord and satisfaction of such school warrant; and an answer setting out fully the facts constituting the transaction may be treated as a payment, or an accord and satisfaction, though such de* ■fense m