Carter v. Karterud , 40 S.D. 127 ( 1918 )

McCOY, J.

Plaintiff alleged that on the ist day of April, 1916, defendant executed and delivered to her a certain promissory note in writing, whereby, for value received, he promised to pay plaintiff or .order, on the ist day of November, 1916, the sum of $176.54, with interest; that plaintiff is 'the owner and holder of said note, and that no part thereof has been paid. To this complaint the defendant interposed the answer that plaintiff was 'the executrix of the last will and testament of her deceased' husband, one Ross; .that after she became such executrix she represented and stated to. defendant, through, her agents andi attorneys, that defendant was indebted to said estate on a certain promissory note which she claimed the defendant gave to her deceased husband on the 5th day of April, 1910; -that as such executrix s'he made no mention of said note in the inventory of property of said estate; that said representations and statements of said executrix andi her agents and attorneys as to the indebtedness of defendant to said estate on said note were untrue, and, upon information and belief, defendant states that she as such executrix knew them to he untrue, and that they were made to defendant to deceive him and to .procure from him a new note, and defendant, believing and relying on said statements, was deceived, and was induced thereby to give a new note note in the place of the old mote, and being so deceived .and -relying on said statements and representations, on .or about the 1st day of April, 1916, he gave plaintiff a new note in her individual capacity; .that said new note is the note sued on in plaintiff’s complaint, and that the said old note is a forgery, and that it was not made or signed by the defendant, or by any one in his behalf, and that his name was forged thereto without his knowledge or consent, and that defendant did not discover the same until after said new note was given .to- the plaintiff, and as a matter of fact defendant was not indebted to said Ros-s at the time of his death nor to his estate, and that -said new note was given to plaintiff without any consideration, and that he would mot have given said note but for the statements 'and representations so made. To this defense .plaintiff interposed the demurrer that the ■same did not state facts sufficienut to constitute a defense to plaintiff’s complaint. From an order of the trial court sustaining said demurrer, the defendant appeals, -assigning as error the said ruling of the trial court.

[1] We are of the opinion that the said ruling of the trial court was erroneous. The fact that 'the new note was- m-ade payable to plaintiff in her individual capacity, and not as executrix of the estate of her husband, is immaterial. Under the will of her husband, his personal property, subject to the payment of debts, was . devised1 to respondent during her lifetime, with the remainder after her death to bis children. She was 'at least a party 'in interest, and whatever -account, if -any, she would be required to make of the proceeds of -the original note to the' creditors, or children of Ross, would- be a matter in. which-said defendant would' have no interest so far as appears from- the allegations of this 'answer.

[2] Appellant contends that the note sued on is a renewal only of filie old note. No -allegations are contained in this answer tending to show that the new note was -a renewal of the old; but this answer -expressly states; that the lust note was taken as a "new note” in place of the old. But -taken as a whole, we are of the view that the answer liberally construed is sufficient to raise the is-sue that there was no -consideration for the giving of the note sued upon, and that the demurrer should have been overruled.

The order appealed from is reversed.