Stebbins v. Lardner

Citations

• 2 S.D. 127
• 48 N.W. 847
• 1891 S.D. LEXIS 14

Syllabus

<p>1. Any defense good as against the original owner of a non-negotiable note is good as against the transferee or assignee.</p> <p>2. Under the provisions of Section 4915, Comp. Laws, it is competent for a defendant to plead as many defenses as 'he may have, whether consistent or inconsistent with each other, — and he cannot be required to abandon one defense in order to avail himself of another inconsistent defense; nor can he be compelled to elect as between inconsistent defenses, or bo precluded from giving evidence under either.</p> <p>3. F. was trustee for M. and Mrs. L., who assigned to him certain water-rents, to be applied in payment of the indebtedness of L., the husband, and M., due to a bank of which F. was cashier. Evidence was offered to prove payment by F. of a note given by L. and M., and held by the bank, which was objected to and excluded on the ground that defendfendants, after pleading payment, had in a supplemental plea pleaded a release. Held error.</p> <p>4. Evidence was also offered to prove that F., as trustee, was instructed by L. and M. or Mrs. L. to pay rents received by him on the note signed by L. and M., held by the bank of which F. was cashier, until the same should be paid and extinguished, and that F. had received and paid over to the bank a sufficient amount of rents to pay said note, which was objected to and excluded. Held, error.</p> <p>5. Held, further, that F.s as cashier of the hank, was chax’ged with his knowledge as trustee as to such instructions, and that his knowledge as cashier was the knowledge of the bank.</p> <p>6. Held, further, that in applying such rents after they were received and paid into the bank said F. acted in his capacity as cashier, and was hound to apply the same to the indebtedness of the debtors, as directed by them; and that, if sufficient rents were paid in to the bank by him as trustee to pay said note, and he was directed to apply the same upon the note, the note, in law, was paid.</p> <p>7. Evide