Smith v. Breer , 49 S.D. 614 ( 1926 )

POLLEY, J.

The plaintiff in these cases is the superintendent of banks. The defendants McDonald, Morris, Baker, Woodard, and Plelgerson are directors and officers of the Western State Bank at Mt. Vernon. Said bank became insolvent, and was taken over by the superintendent of banks, who brought these actions under the provisions of section 8990, Rev. Code 1919, against said defendants as officers and directors of said bank to recover against them for the making of excess loans. The trial court overruled a demurrer to the complaints, and defendant Baker appeals.

It is conceded that, if the notes set out in the complaints were given for money loaned, the cases come within the rule laid down by this court in Farmers’ State Bank v. Youngers, 200 N. W. 1019, 47 S. D. 592, and that the plaintiff is entitled to recover. But it is contended by appellant that there is nothing in the complaints to show that such notes were given for money loaned to the makers thereof. The complaints, except in No. 5833, merely allege that on a given date the maker of the note, “for value, made, executed, and delivered her promissory note in writing,” without stating whether it was given for money advanced or for property sold. This is not sufficient. The_ liability created by section 8990 is only for the making of excessive loans, as defined by section 8980, Rev. Code 1919. In case No. 5833 the -complaint contains the allegation that the defendant Morris received the consideration for the note in the sum of $7,000, but there is no affirmative allegation of the making of a loan.

The orders appealed from are reversed and the cases remanded, with directions to the trial court to permit the plaintiff to amend his complaints, if he so desires.

MISER, Circuit Judge, sitting in lieu of SHERWOOD, J.