Grissel v. Bank of Woonsocket

Citations

• 12 S.D. 93
• 80 N.W. 161
• 1899 S.D. LEXIS 81

Syllabus

<p>1. In an action against a bank to recover a deposit, defendant answered that it had boon applied on plaintiff’s note, which it bold. Plaintiff claimed that he gave the note for the accommodation of his brother, who, oil a certain day, paid it by giving another note, which defendant accepted in full payment. Defendant claimed that the now note was taken as collateral security for plaintiff’s note, and not in payment. Plaintiff’s note remained in the bank, uncanceled, for 14 months after the new note had been given, and neither he nor his brother demanded possession of it. Defendant offered to prove that during said 14 months it had frequent conversations with plaintiff relative to his note, and that lie never denied his liability, but said ho would pay it as soon as possible. Meld error to exclude such evidence, as it was proper to show the understanding of the parties as to the transaction by their conversations and acts.</p> <p>2. In such case, giving an instruction that when parties are making a bargain they are all held to mean and intend just what the language used by 1-hem commonly imports, as ordinarily used in reference to the subjoct-matter of the contract, and not what either parly may have secretly intended in his own mind, and a repeating of it as follows: “If his words, as commonly understood in relation to tho subject-matter, import an agreement, then you must find an agreement from these words, and not what he secretly intended and meant,” — was error, as it tended to give the jury the impression that the court thought that the evidence of plaintiff’s brother as to the transaction in making the new note was correct, and that the bank, while giving him to understand that the new note canceled the old one, secretly intended to regard the note as unpaid.</p> <p>3. In such case, it was error to refuse to instruct that if the jury find that plaintiff’s brother understood that plaintiff was to be released from his liability on his note, and by reason of s