Ellens v. Lind , 66 S.D. 515 ( 1939 )

This cause was before this court on a former appeal and is reported in 65 S.D. 620, 277 N.W. 40. The reported opinion disposes of all the issues in the case, but one. This one issue is the one raised by the contention on the part of the defendant that on the first day of March, 1929, Mrs. Ellens, the payee, in the note involved in the case, executed and delivered to the defendant, William W. Wasem, a release from the payment of the balance of $5,000 that was still unpaid on the said note. The plaintiffs denied that any such release had ever been given. The court made no finding on the subject other than that the defendant had not been released, without finding whether or not such instrument had been executed or delivered. The cause was remanded to the trial court with directions to make findings of fact on all the material issues, and upon such findings of fact and conclusions of law to make and enter judgment accordingly. Pursuant to such direction the trial court made a special finding as follows: "The said Theresa Ellens at no time signed, at no time executed, and at no time delivered that certain purported release, contract or agreement in writing, a copy of which was offered and received in evidence upon the trial of said action. * * * And that the said Theresa Ellens at no time released the defendant, William H. Wasem, from any personal liability on said promissory note and under said extension agreement."

With this additional finding of fact the trial court again made conclusions of law and entered judgment in favor of the plaintiffs.

We are satisfied that this finding of fact is warranted by the record, and that the conclusions of law and judgment are fully supported by the findings of fact.

The judgment and order appealed from are affirmed.

All the Judges concur.