Whiffen v. Hollister

Citations

• 12 S.D. 68
• 80 N.W. 156
• 1899 S.D. LEXIS 78

Syllabus

<p>1. In an action on a note, defendant claimed that the action was premature; relying on an agreement to extend, which ho had complied with. It was shown that, on a request to extend, plaintiff agreed thereto, and wrote defendant that, so long as he kept the interest paid, the principal might remain. Defendant, relying on the letter, subsequently paid the interest, and before the expiration of the time to which it was paid the suit was commenced. Held, that the agreement to extend on payment Of interest was without consideration, as defendant ouly promised to do what he was already obliged .to do, and was insufficient to sustain the defense.</p> <p>2. In an action on a note, defendant, as a counterclaim, alleged that, as collateral security, be assigned to plaintiff a certificate of mortgage sale of land, and offered to show that plaintiff agreed to sell it or the property as soon as the sheriff’s deed was secured, and credit the amount on the note, and that he failed to do so, to defendant’s damage. Tbe court excluded the evidence because tbe agreement was not in .writing. Held error, as the agreement was as to the terms on which the certificate was assigned, and not within Comp. Laws, § 3544, requiring contracts affecting' land to be in writing.</p> <p>3. Where evidence of a contract is objected to on the trial because it was not in writing, its inadmissibility cannot be urged on appeal on some other ground.</p> <p>4. In an action on a note, defendant, as a counterclaim, alleged that, as collateral security, he assigned to plaintiff a certificate of mortgage sale of land, with authority to procure the sheriff’s deed, sell the property, and apply the proceeds to the payment of the note; that plaintiff had neglected to sell the property, which had greatly depreciated in value, to defendant’s damage. Held that evidence as to the value of the land at the time plaintiff was entitled to a sheriff’s deed, and its value at the commencement of the suit, was admissible, si