(dissenting).
The trial court erred in directing a verdict that plaintiff could not recover monies lent to defendant that were not evidenced by a written document.
The trial court said “you give him 20 bucks, you can never sue him to collect it.” This is nonsense. The statute of frauds prohibits enforcement of:
An agreement for a loan of money or for an extension of credit[.]
SDCL 53-8-2(4) (emphasis added). In other words, the statute of frauds prohibits the enforcement of an agreement or promise to loan money but does not prohibit the collection of money loaned. Therefore, the trial court was dead wrong.
*667Even more important is the fact that the Answer to the Complaint admitted that:
Plaintiff has loaned to defendant the sum of $5,000.00 and defendant has offered to repay plaintiff that amount according to their agreement. (Emphasis added).
“[N]o evidence is required to establish a fact conceded by answer.” Simons v. Kidd, 73 S.D. 306, 309, 42 N.W.2d 307, 308 (1950). This is an admission against interest and eliminates plaintiffs burden of proof to at least $5,000.00, not just the $654.00 found by the trial court. See Id. Since the burden of proof as to $5,000 is eliminated, the majority opinion’s strained justifications and the presumptions from Baltodano are not even relevant.
We should reverse this case because the trial court went against settled South Dakota Law at least twice.
Accordingly, I would reverse and remand to the trial court to enter judgment consistent with this dissent.