Commercial Bank of Moscow v. Lieuallen

• Decision Date: 30 November 1896
• Parties: COMMERCIAL BANK v. LIEUALLEN
• Court: Idaho Supreme Court

46 P. 1020

5 Idaho 47

COMMERCIAL BANK v. LIEUALLEN

Supreme Court of Idaho

November 30, 1896

CONFLICT OF EVIDENCE-FINDING OF FACTS.-The facts found by the court will not be disturbed on appeal where there is a substantial conflict in the evidence. Held, that there is no such conflict in this case.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded, with instructions.

Sweet &amp Steele, for Appellants.

The last note was signed by Mr. Lieuallen alone, and there was pledged as security therefor, together with other notes, a chattel mortgage upon Mr. Lieuallen's stock of goods. Why place a mere memorandum note in a mortgage, and how is it possible to proceed with a chattel mortgage foreclosure upon a mere memorandum while the plaintiff holds the only actual evidence of the debt? These facts and circumstances indicate we think, that these notes were given by Mr. Lieuallen in payment of the original debt, and were accepted by the bank as such. (Waydell v. Leur, 3 Denio, 426.) If it was agreed that the new note should be received as payment of the original debt, then the giving of a new note is payment. ( First National Bank v. Newton, 10 Colo. 161, 14 P 428; Brewster v. Bours, 8 Cal. 502; Welch v. Arlington, 23 Cal. 322.) Plaintiff cannot sue upon the $ 1,600 note, the original debt, and during the pendency of the action, bring foreclosure proceedings under the chattel mortgage act for the collection of the same debt represented by another note; if it be considered that the new note was not payment, still plaintiff cannot proceed on the original note without surrendering for cancellation the outstanding note for $ 763.60. (Holmes v. D'Camp, 1 Johns. 24; Edwards on Bills and Notes, sec. 753; Prisbic v. Larned, 21 Wend. 450; Tobey v. Barber, 5 Johns. 68, 4 Am. Dec. 326; Burdic v. Green, 15 Johns. 246; Hughes v. Wheeler, 8 Cow. 82.)

Forney, Smith & Moore, for Respondent.

The principal witness in the case on the part of plaintiff was I. A. Funk. His testimony is to the effect that this note has not been paid, and that the Commercial Bank owns the same. The appellants introduce in their behalf J. W. Lieuallen, who testified as to the payment of the $ 1,683 notes. The transcript therefore shows that there was a conflict of the testimony on this point. The court finds in effect that plaintiff is now the owner and holder of said note, and that the whole amount due thereon is the sum of $ 962.19, etc. This, then, is a finding of the court upon conflicting testimony, with the evidence of one man to support and one to contradict it. The rule of law applicable to such a state of facts is too elementary to require any citation; but we would call appellants' attention to the fact that it has been repeatedly held in almost every state and territory in the Union that where there is conflicting testimony upon a given point, the finding of the court thereon will not be disturbed in the appellate court, provided there is a scintilla of evidence to support such finding. (Cooper v. Kellog, 2 Idaho 330, 13 P. 350; Sabin v. Burke, 4 Idaho 28, 37 P. 352; 1 Deering's California Digest, Appeals, XI, secs. 2596, 2597, and cases cited; Heinlen v. Heilbron, 97 Cal. 101, 31 P. 838; Reay v. Butler, 95 Cal. 206, 30 P. 208.)

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

This action is by the Commercial Bank against J. W. Lieuallen and C. C. Lieuallen, as makers of a promissory note for $ 1,683.75. The plaintiff prays for a decree foreclosing the real estate mortgage executed by J. W. Lieuallen and Ivanella Lieuallen, husband and wife, as security for the payment of said note. A. A. Lieuallen and A. J. Cable were made defendants, on the ground that they had a lien against the real estate, which lien plaintiff claims is subsequent to the lien of said mortgage. J. W. Lieuallen and his wife contested the right of the bank to foreclose said mortgage, on the ground that said promissory note had been paid in full. The suit was tried by the court, without a jury, and judgment and decree of foreclosure were entered against the defendants. This appeal is from the judgment and order overruling defendants' motion for a new trial. Several errors are assigned.

The facts of this case are substantially as follows: The plaintiff seeks to foreclose a mortgage on real estate given to secure a promissory note executed for $ 1,683.75, and dated January 27, 1892, due six months after date, claiming a balance due thereon of $ 894.20, with interest from November 21, 1892. The defendants admit the execution of the note and mortgage, but claim that said note has been paid in full, by the payment of a certain amount of cash, and the execution of a promissory note for the sum of $ 1,556.25, dated August 23 1893; that the last-mentioned promissory note was paid, part in cash, and the balance by a promissory note for $ 763.60, dated November 23, 1893, which was secured by chattel mortgage, on which chattel mortgage foreclosure proceedings were commenced December 4, 1894, during the pendency of this action. The plaintiff claims that said $ 1,556.25 note and the $ 763.60 note were "memorandum notes," representing the balance due on the $ 1,683.75 sued on in this action, after certain payments were made, and gives as one reason for taking said first-mentioned note that the matter would run for a long time, and would save the expense of executing a new mortgage, every time a partial payment was made thereon. Witness Funk, cashier of the bank, testified as follows, to wit: "I took a note for $ 1,500 and some odd dollars--I think $ 1,525.25, if I remember correctly--simply as a settlement as to the balance due, and pinned it right to this [note of $ 1,683.75], and told him [Lieuallen] we would hold this as the collateral to this note of $ 1,556.25; and then when he made a further settlement, after selling some property for $ 700, I destroyed the other note [meaning the $ 1,556.25 note], gave it to him, and pinned a note to this as a memorandum note, still holding this note in the same position as it was when we had the fifteen hundred, we considered a memorandum; it was with us all the time." Some of the above evidence is a little obscure, but is made plain by other evidence. Mr. Funk, on behalf of plaintiff, testified in regard to the $ 763.60 note as follows: "It is simply a memorandum of a settlement that we had, which is the balance due on this note"--meaning the $ 1,683.75 note. The following question was propounded to...