Baird v. Goforth

• Decision Date: 15 December 1926
• Docket Number: No. 5205.,5205.
• Parties: BAIRD v. GOFORTH.
• Court: North Dakota Supreme Court

54 N.D. 805

211 N.W. 587

BAIRD

v.GOFORTH.

No. 5205.

Supreme Court of North Dakota.

Dec. 15, 1926.

Syllabus by the Court.

Where a negotiable instrument is no longer in the possession of the party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved. Section 6901, C. L. 1913; Negotiable Instruments Law, § 16. And where the maker of a promissory note, which is in the possession of the payee named therein, claims that there was a conditional delivery of such note, the maker has the burden of establishing his defense of conditional delivery by a preponderance of the evidence.

On appeal from a judgment rendered in an action properly triable to a jury, but tried to the court without a jury, the findings of fact are presumed to be correct; and when such findings are based upon parol evidence, they will not be disturbed unless shown to be clearly opposed to the preponderance of the evidence.

In the instant case, the plaintiff seeks to recover upon a promissory note. The trial court held that certain defenses interposed by the defendant had not been established. For reasons stated in the opinion, it is held, that the findings of the trial court have ample support in, and are not opposed to the preponderance of, the evidence.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by L. R. Baird, as receiver of the Farmers' & Merchants' Bank of Hunter, against R. D. Goforth. From a judgment for plaintiff, defendant appeals. Affirmed.Divet & Sgutt, of Fargo, for appellant.

O. S. Gunderson, of Fargo, for respondent.

CHRISTIANSON, C. J.

This is an action upon a promissory note executed by the defendant on or about November 25, 1922, payable to the Farmers' & Merchants' Bank of Hunter, N. D., or order. The note is in the sum of $616 and bears interest at the rate of 6 per cent. per annum from date until paid. Subsequently the payee bank became insolvent and the plaintiff Baird was duly appointed receiver thereof. The note in suit came into his hands among the other assets of the bank. The defendant failed or refused to pay the note, and the plaintiff instituted this action. The allegations of the complaint are in the usual form. The defendant in his answer admitted the corporate capacity of the bank, its insolvency, and the appointment and qualification of the plaintiff Baird as receiver. He further admitted:

“That on or about the 25th day of November, 1922, he executed a promissory note substantially as described in said complaint, but in this connection alleges that said note was given in renewal of certain other notes held by said Farmers' & Merchants' Bank of Hunter, N. D., and said note was delivered to said bank upon the condition that said former notes should be returned to defendant before said note should take effect and be binding upon the defendant and before said delivery of said note should be complete. That although due demand has been made for the return of said former notes, none of said notes have ever been returned to defendant.”

The defendant further alleged that the note in suit “was executed in renewal of certain other promissory notes, held by said Farmers' & Merchants' bank of Hunter, N. D., and that said other notes have never been returned to defendant, and defendant is informed and believes, and therefore alleges the fact to be, that none of said renewed notes were ever in any way marked ‘RenewedNote’ or with any words to that effect.”

The defendant as a further defense alleged that the note in suit “was executed in renewal of certain other negotiable promissory notes executed and delivered by defendant to said bank of Hunter, and that said original notes have all been transferred by said bank of Hunter to innocent third parties by due indorsement before maturity, and that upon presentation and demand for payment of said original notes defendant will become liable to any innocent third parties who may be the holders of said notes for the balance remaining due on said notes with interest, and that if judgment is rendered against him in this action he will be liable to pay both the original and the renewal notes.”

The case was tried to the court, without a jury, upon the issues thus framed, and resulted in findings and conclusions in favor of the plaintiff. The defendant has appealed from the judgment.

The only evidence adduced upon the trial consisted of the testimony of one Engen, the district manager of the receiver, and of the testimony of the defendant Goforth. The defendant testified that the signature to the note in suit was his signature; that he signed the note on his farm near Hunter at the request of one Collins, the then cashier of the Farmers' & Merchants' Bank of Hunter; that when he signed the note the amount thereof was not stated, i. e., that the amount of the note was left blank; that it was understood that the note was given to take up certain past-due notes of the defendant, then owing to the Farmers' & Merchants' Bank of Hunter; and that it was further understood that Collins, the cashier, would fill in, in the blank line, the amount due upon all the outstanding notes held by the bank against the defendant; that at the time the note was executed Collins stated:

“The old...