B. Darelius and wife, for an accounting of rents and profits of certain land held by Darelius under mortgage foreclosures and their application upon the mortgage indebtedness and for leave to redeem. At the trial the court granted the motion of the defendants for judgment on the pleadings. The plaintiff moved for a new trial and appeals from the order denying it. Locke made to one Jacobson three separate mortgages upon property in St. Paul. These mortgages were foreclosed and at the sales Jacobson bought. Prior to the expiration of the year of redemption Jacobson sold to August B. Darelius. It is not claimed that he acquired rights greater than Jacobson had. Upon the expiration of the year of redemption Darelius brought unlawful detainer against Locke in the municipal court. Locke answered claiming that at the time of the foreclosures the mortgagee had in his hands moneys which should have been applied in payment of accruing interest, and which was sufficient to pay it, and that since the only default claimed was in the payment of interest the foreclosures were premature and invalid. The action was transferred to the their rights were measured by the contract of sale. The record does not present a case of the waiver of rights acquired under a foreclosure such as was involved in Oertel v. Pierce, 116 Minn. 266, 133 N. W. 797, Ann. Cas. 1913A, 854; nor does it illustrate the giving of an extension of the time in which to redeem, 2 Dunnell's Minn. Dig. § 6400; nor does it make a case of an avoidable release of the equity of redemption, Dunnell's Minn. Dig. and Supp. § 6396. The parties simply settled their controversy and executed a contract of sale which measured their rights. We have not found it necessary to consider the effect of the judgment in the unlawful detainer suit nor the judgments in favor of the defendant in three actions brought by Locke against Jacobson prior to the expiration of the year of redemption to cancel the foreclosures on the ground that they were premature. Order affirmed. GILBERT v. HARDIMON. (No. 4274.) June 11, district court. At the trial on April 24, (Supreme Court of South Dakota. 1913, a stipulation was made in open court that if Locke would surrender the premises without the aid of a writ of ouster by May 1, 1913, Darelius would sell and convey to him the property involved at a stated price. The stipulation contemplated the making of a contract of sale and finally the entry of judgment in favor of Darelius. Locke surrendered possession and on July 14, 1913, Darelius executed the contract of sale contemplated by the stipulation. The plaintiff claims that the effect of the stipulation and contract and the surrender of possession was to waive the rights acquired by foreclosure and to concede and continue the mortgage relation, notwithstanding the foreclosures, and to make the defendant a mortgagee in possession, and that his right to redeem has not been extinguished. If so, of course the plaintiff has a right of redemption and is entitled to an accounting. We cannot sustain the contention of the plaintiff. It is not alleged that the agreement was other than that expressed in the stipulation and contract. They evidence whatever agreement there was. Indeed it is alleged, and it is obvious, that the stipulation was a settlement of the controversy. It is alleged, it is true, that the contract was an extension of the time of payment of the mortgage indebtedness. This is a matter of legal construction and upon the record such was not the legal effect of the contract. That the parties made a settlement is clear. That settlement did not recognize nor create a mortgage relation but ended a controversy by establishing the precise relations of the parties. Thenceforward 1918.) 1. WAREHOUSEMEN 34(5)-WANT OF NEGLIGENCE-BURDEN OF PROOF. When plaintiff showed that the automobile was in good condition, and that all the parts and tools were there when he delivered it to defendant warehouseman, and on taking it out of storage many were missing, the burden was on defendant to show want of negligence. 2. WAREHOUSEMEN 34(9)—WANT OF NEG. LIGENCE QUESTION FOR JURY. missing parts and tools of plaintiff's automobile, In an action for damages for broken and stored with defendant warehouseman, defendant's evidence of want of negligence held insufficient for consideration by the jury. Appeal from Municipal Court of Sioux Falls; L. E. Waggoner, Judge pro tem. Action by W. N. Gilbert against Frank Hardimon. From judgment for defendant, and order denying new trial, plaintiff appeals. Reversed and remanded for new trial. Kirby, Kirby & Kirby, of Sioux Falls, for appellant. John D. Lynch, of Sioux Falls, for respondent. GATES, J. Plaintiff stored an automobile with defendant, a warehouseman, for several months. On taking it out of storage certain parts and tools were missing, certain parts broken, and the machine would not run. In an action for damages the jury returned a verdict for defendant. From the judgment and an order denying a new trial, plaintiff appeals. [1, 2] The only point necessary to consider is the sufficiency of the evidence to sustain the verdict. As charged by the court when proof was offered tending to show that the machine was in good condition and all the parts and tools were there when delivered to the warehouseman, the burden was on defendant to show his want of negligence. The only witness for the defendant was himself, and he apparently knew nothing about the car, except that he first saw it several days after it was placed in storage. He did not testify that he ever made a personal examination of the car, nor did he dispute any of the evidence offered on behalf of plaintiff. After testifying generally as to the care used, he testified that none of the articles removed from plaintiff's car were removed by him or by his order, but that a short time prior to the removal of the machine the warehouse was broken into. He did not testify as to the condition of the car before or after the warehouse was broken into, nor did he call any of his assistants to the witness stand. He also negatived the assumption on his part that the damage occurred and the missing parts were stolen at the time the warehouse was broken into by testifying that, "We checked everything over, and everything was there." We are of the view that the defense was insufficient in law to be considered by the jury. The fact that the windshield was broken, that a good tire was taken off and an old worn tire substituted, and that the machine would not run, together with plaintiff's testimony as to the examination made immediately thereafter, show, beyond a reasonable doubt, that the condition of the car was not the result of the breaking into the warehouse. Reasonable men could not differ from this conclusion. We think defendant utterly failed to establish a defense to the action. The judgment and order appealed are re versed, and the cause remanded for a new trial. to constitute a qualified majority of the board, the allowance was insufficient to toll the statute of limitations. Appeal from Circuit Court, Kingsbury County; Alva E. Taylor, Judge. Action by Carl C. Nordgren against the OldFrom a ham Rural Telephone Company. judgment in his favor for partial relief, plaintiff appeals. Affirmed. E. F. Green, of De Smet, for appellant. Null & Royhl, of Huron, for respondent. SMITH, J. Action to recover an amount alleged to be due upon a contract for the construction of a telephone line and for other work and labor performed and moneys expended for the use and benefit of the defendant corporation. The complaint alleges four separate and distinct causes of action, each embracing different items of debit and credit. The answer, so far as material to this appeal, contains a general denial, a plea of the sixyear statute of limitations, and allegations to the effect that the plaintiff, as an officer of the defendant, has in his possession moneys of the corporation unaccounted for, with a prayer for an accounting. Trial to the court, which made findings of fact and conclusions of law and entered judgment for $83.16 in favor of plaintiff. Plaintiff appeals. The assignments cover only alleged errors in and insufficiency of the evidence to sustain receiving in evidence two certain exhibits, the findings and judgment. The evidence is voluminous and somewhat conflicting, and covers some 145 pages of the printed record. A discussion of the rulings upon the exhibits referred to would necessarily involve a review of the evidence and the record, and the assignments present no questions, principles, or rules of evidence which are not well settled, and a review of them is not justified by their importance in this case, especially in view of the conclusions reached upon other NORDGREN v. OLDHAM RURAL TELE- grounds. We have examined the entire evidence, to(Supreme Court of South Dakota. June 11, gether with the findings of the trial court, 1918.) 1. LIMITATION OF ACTIONS and, while we are of the view that the court 177(1)-PLEAD-erred in finding certain facts, we are clearly ING-SEPARATE CAUSES OF ACTION. of the opinion that such errors were not prejWhere separate items are pleaded as sep- udicial, in that the judgment awards to plainarate causes of action, to which defendant does not object, it is improper for the court, in de- tiff an amount in excess of what he is entitled termining the operation of the statute of limi- to recover under the issues and the evidence tations, to treat the various items as an account. in the record. The plea for an accounting 2. LIMITATION OF ACTIONS 195(6) Ac- need not be considered, for the reason that KNOWLEDGMENT-BURDEN OF PROOF. The burden of proving a legal and valid al- no moneys belonging to the corporation are lowance of a claim by the directors of defend- shown to have been received by plaintiff exant corporation, tolling limitations, is on plain- cept such as were connected with items intiff. volved in the various causes of action pleaded. A careful examination of the evidence shows that every item of plaintiff's different causes of action, save one for $18 rent of Becker telephone from March, 1907, to August, 1908, was barred by the six-year statute of limitations, and the trial court should have so found. 3. LIMITATION OF ACTIONS 143(1)-AcKNOWLEDGMENT BY CORPORATE DIRECTORS MAJORITY-ALLOWANCE OF CLAIM. In a suit against a corporation to recover on a contract for work and labor, wherein it was alleged that the claim had been allowed by the board of directors, evidence that but three of the directors, including plaintiff, who was secretary to the board, voted for the allowance of the claim, and plaintiff's vote was necessary [1] Apparently the trial court lost sight of | Gildseth testified that he did not think he voted for any of these bills. Appellant himself was secretary, whose duty it was to keep record of meetings. the fact that distinct items pleaded involved tiff presented to the board for allowance the four distinct causes of action, and made its four distinct groups of claims sued upon in findings in the form of an account covering this action. This evidence was to show an all the causes of action. The several state- allowance of these claims for payment. This ments of claims in the complaint, while not meeting was held on March 6, 1907. At the described as distinct causes of action, were in time this meeting was held the plaintiff himfact separate and complete, and no objection self was one of the directors, as was his to the form of pleading having been made by brother, both of whom appear to have particdefendant, the trial court should have treat- ipated in this meeting and voted for the ed them as distinct. One of these causes of allowance of these claims. Plaintiff testified: action, covered by paragraphs 2, 3, 4, and 5 "My brother, I, and Cords (another director), of the complaint perhaps requires further and maybe Gildseth, was there. Three consticonsideration. This cause of action is found- tuted a quorum. I don't think Jensen voted for allowing the bills. * I voted in favor of ed upon a contract for the erection of a tele- these bills and my brother voted in favor of phone line under which plaintiff agreed to do them. If there was a tie, Mr. Cords voted. I the work for $170. The contract, however, do not remember if Jensen voted against them. contained a provision that, in case the de- I do not remember if Gildseth voted. We had a secretary's book that was lost, which should fendant company, its officers, or stockholders have contained this meeting." delayed or hindered the carrying out of the contract, the plaintiff should recover day wages for himself and his employés, with expenses and damages for work done up to that time, at such rate per day as was then paid for farm labor. The contract required the company to furnish and deliver material on the ground for use in construction work. Plaintiff founds his right of recovery in this action upon an alleged breach of this provision of the contract, and claims to recover thereunder the sum of $379.50, the value of his own labor, together with the value of the labor and board of his employés. To sustain this claim, plaintiff put in evidence an itemized statement of his own labor, and that of his employés with value of their board, the first item of which was dated July 17, 1906, and the last, September 25, 1906, and also put in evidence his own diary or memorandum, from which this statement was made, the last entry in said diary being, "September 25, 1906, Finished." The action was begun on May 1, 1913. The cause of action thus pleaded and proved was plainly barred by the six-year statute of limitations. Assuming, without deciding, that the action of the board of directors in allowing such claims might toll the statute of limitations, the burden of proving a legal and valid allowance thereof certainly rested upon appellant. Upon the record before us we certainly are not able to say that a qualified majority of the board of directors, other than plaintiff, voted in favor of the allowance. On the contrary, we think the evidence tends strongly to show that but three of the directors, plaintiff, his brother, and Cords, so voted, and that it required plaintiff's own vote to allow such bills. In such case, the action was void. Ritchie v. People's Telephone Co., 22 S. D. 598, 119 N. W. 990. This evidence is wholly insufficient to toll the statute. Plaintiff, having recovered an amount in excess of that to which he was legally entitled under the issues and evidence, could not have been and was not prejudiced by the errors complained of. [2, 3] To toll the statute as to this and his other claims, plaintiff put in oral evidence of a meeting of the board of directors of the de- The order and judgment of the trial court fendant corporation, at which meeting plain-are therefore affirmed. INDEPENDENT HARVESTER CO. v. LEE.* STONE et al. v. LEAVITT et al. (No. 4259.) (No. 4301.) (Supreme Court of South Dakota. June 11, (Supreme Court of South Dakota. June 11, 1918.) CORPORATIONS 90(7)-PURCHASE OF CORPORATE STOCK-RESCISSION-DIRECTED VERDіст. In an action to recover on unpaid notes given for shares of stock of plaintiff corporation, in which action defendant alleged facts upon which he might have sought a rescission which he did not plead, defendant was not entitled to a judgment of rescission, and a verdict should have been directed for plaintiff, where the evidence proved no more than that at one time defendant made demand upon plaintiff, indicating a desire and perhaps a present in tention to attempt a rescission, but established without dispute that, after learning the facts which revealed the fraud, and after making the said demand, defendant treated the stock as his own, and attempted to sell it. Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge. 1918.) 1. MORTGAGES 384-RIGHTS OF ASSIGNEES -STRICT FORECLOSURE. Defendant assigned a contract for the purchase of land by installments to plaintiff as security for an indebtedness. Plaintiff made the payments called for by the contract, received a deed, and brought suit for strict foreclosure against defendant, who alleged that he had paid the amount for which the contract was assigned as security. Held, that plaintiff's rights against defendant were to be measured by the contract between them, and not by the contract assigned; plaintiff being a mortgagee, who could enforce his right by ordinary foreclosure only. 2. WITNESSES 164(6)-TRANSACTIONS WITH DECEASED PERSON. In a suit by representatives of deceased assignee of a land contract which had been assigned as security, in which plaintiffs sought strict foreclosure against the assignor, and assignor pleaded payment of the secured indebtedness and reimbursement of moneys paid by assignee under the land contract, notes describ contract, offered in evidence by the assignor to by the assignee to the vendor named in the land support his allegations of reimbursement of assignee were admissible, as against the objection that they were incompetent under Laws 1913, c. 371, as to testimony as to transactions with a deceased person. Action by the Independent Harvester Company against Gilbert E. Lee. From a judged in the land contract, which had been paid ment for defendant and from an order denying plaintiff's motion for directed verdict, plaintiff appeals. Reversed. Cherry & Abbott and Roy B. Marker, all of Sioux Falls, for appellant. Parliman & Parliman, of Sioux Falls, and Krause & Krause, of Dell Rapids, for respondent. WHITING, P. J. Plaintiff had sold to defendant several shares of its stock, taking from defendant several notes in payment therefor. Defendant had paid some of these notes. This action was brought to recover on the unpaid notes. Defendant alleged facts upon which he might have sought a rescission of the original transaction, and he asked judgment for the sums which he had paid on the notes. He did not plead a rescission. Neither did the evidence prove more than that at one time he made a demand upon plaintiff, indicating a desire and perhaps a present intention to attempt a rescission. The evidence also established without dispute that, after learning facts which revealed the fraud, if any, which had been practiced upon him, and after making the demand above referred to, he treated the stock as his own and attempted to sell same. It is therefore clear that defendant neither rescinded nor was entitled to a judgment of rescission. The instructions of the trial court were to the effect that defendant was entitled to recover if he acted promptly upon discovering the facts upon which a right to rescind might be based. The jury returned a verdict in favor of defendant for all he had paid on the notes. There being no rescission proven and no proof of facts warranting a judgment of rescission, the trial court should have directed a verdict for plaintiff. Appeal from Circuit Court, Marshall County; Thomas L. Bouck, Judge. Suit by Earl L. Stone, administrator of the estate of Will G. Boyd, deceased, and others against A. E. Leavitt and another. From a judgment for plaintiffs and denial of a new trial the named defendant appeals. Reversed. Frank McNulty, of Aberdeen, for appellant. Potter & Potter and Anderson & Waddel, all of Webster, for respondents. WHITING, P. J. Defendant L. entered into a written contract under which he contracted to purchase certain land, agreeing to pay a certain amount each year for several years, such payments being evidenced by promissory notes executed by L. After paying the first note L. assigned the said contract and his interests thereunder to one Boyd. Such assignment was in writing, and it assigned such contract and L.'s rights thereunder as security for certain indebtedness owing from L. to Boyd. Boyd made the payments called for by the contract, and received a deed to the land. Defendant H. held a judgment against L., which judgment was of record in the county where the land was situated. Alleging that L. had failed to pay the debts secured by the assignment of the land contract and the money paid by Boyd in carrying out the terms of said contract, plaintiffs, as administrator and heirs of Boyd, brought this action, seeking a strict foreclosure as against the defendants. L. The judgment and order appealed from are answered, pleading payment in full of the debt reversed. for which the assignment was given, as well For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes had to advance to protect his title to the land from incumbrances, taxes, etc.. less moneys received from, or the value of the use of, said land. While this error of the trial court would require a modification of the decree of such trial court so as to allow the ordinary redemption from foreclosure, yet it would not require a new trial. as payment to Boyd of the sum that had be-, gether with any sums which Boyd may have come due under the contract with the land company. He alleged that Boyd had been in possession of said land, and had failed to - account for the use thereof; and he prayed a judgment, requiring the plaintiffs to execute to him a deed to said land, or in lieu thereof that the court render such judgment as would vest the title of said land in him, and that he recover such sum as the court should find due him from said Boyd because of the possession and use of said lands. Findings, conclusions, and judgment were entered, under which it was determined that a certain balance was due to plaintiffs from L.; that plaintiffs were entitled to strict foreclosure; that H. had a lien against the land, with the right of redemption from plaintiffs' judgment; that, in case H. redeemed, L., in order to redeem from him, should pay the amount paid by H. to redeem, as well as the amount of the judgment held by H. From such judgment and an order denying a new trial L. appeals. [2] There are, however, other errors that require this cause to be sent back for a new trial. As above noted, it was the contention of appellant that he had not only paid the indebtedness secured by the assignment to Boyd, but that he had reimbursed Boyd for the moneys paid by Boyd under the land contract. The court found that appellant had paid the indebtedness described in the assignment, but found that he had not repaid the moneys paid by Boyd under the land contract. Appellant produced at the trial, and offered in evidence several of the notes described in the land contract, and which had been paid by Boyd to the vendor named in the land contract. This offer was clearly that he had repaid Boyd for the moneys paid made in support of appellant's allegations Respondents obby Boyd on such notes. Respondents question the sufficiency of the assignments of error, but we are of the opinion that the record herein is ample to present all the questions attempted to be raised by appellant under his assignments; and we are of the opinion that respondents have present-jected to the receipt of these exhibits, "for ed no question of practice except such as has been heretofore clearly determined by the decisions of this court. [1] Appellant contends that the trial court wrongfully decreed a strict foreclosure herein. In such contention appellant is clearly correct. Boyd's rights against L. are to be measured by the contract between them, and not by the contract which L. assigned to Boyd. If Boyd, instead of taking the assignment of the land contract, had taken a deed from the vendor subject to such land contract, and defendant L. had defaulted in his payments under such land contract, then plaintiffs, under chapter 138, Laws 1913, would have been entitled to strict foreclosure; but plaintiffs' rights rested entirely upon the terms of the assignment from the vendee, which assignment was confessedly given as security, rendering such assignment nothing more nor less than a mortgage. When Boyd took the deed to this land he held the same as security under the terms of the contract between him and L., and L. could not be deprived of his rights except by ordinary foreclosure. There was no more right of strict foreclosure than there would have been if L., instead of holding a contract for the purchase of said land, had held the title to said land and had conveyed said land to Boyd by a conveyance in form a deed, but intended as a mortgage. Under such circumstances plaintiffs' rights would be those of a mortgagee, and could only be enforced by an ordinary foreclosure, in which foreclosure proceedings they could recover the the reason that it is in contravention and in opposition to the statutes of the state of South Dakota, prohibiting the introduction of any evidence by the defendant relating to a transaction had or a conversation with a deceased (person), this being an effort to prove by this witness, the defendant, that these notes were paid by him to W. G. Boyd and therefore the notes are incompetent, being prohibited by the statutes above referred to." This objection was sustained, and the exhibits excluded, apparently upon the theory that this was evidence of a transaction between appellant and Boyd, since deceased. The ruling of the trial court was clearly erroneous. Certainly if appellant had made any payments to Boyd and Boyd had delivered to him a receipt duly signed by him, there is nothing in the statutes that would forbid appellant testifying to the handwriting and putting into evidence such receipt. The statute in question (chapter 371, Laws 1913) is not directed against or intended to exclude any such evidence. It was clearly competent for appellant to offer testimony showing that he had these notes in his possession, provided the possession of such notes was any evidence that he had repaid to Boyd the indebtedness evidenced thereby. We are of the opinion that the possession of such notes was evidence competent to be considered by the court in support of appellant's claim that he had repaid the advancements made by Boyd on the land contract. 3 R. C. L. p. 1286, § 518. This is especially true because there was some other evidence tending to show |