Donato v. Fishburn
| Decision Date | 29 December 1961 |
| Docket Number | No. 7142,7142 |
| Citation | 367 P.2d 245,90 Ariz. 210 |
| Parties | M. T. DONATO and Iris E. Donato, his wife, Appellants, v. Kenneth Harold FISHBURN, d/b/a City Sheet Metal, Appellee. |
| Court | Arizona Supreme Court |
Botsford & Turner, Scottsdale, for appellants.
Wilson & Books, Phoenix, for appellee.
This is an appeal from a judgment of the trial court sitting without a jury, declaring that a certain peomissory note signed by M. T. Donato was the community obligation of the maker and his wife, Iris E. Donato, and entering judgment accordingly. The appellants contend that the note was the sole and separate obligation of M. T. Donato.
The facts in the case are as follows:
Prior to executing the note referred to, Mr. Donato was president and owned 60% of the capital stock of Period Homes, a California corporation. He and two other individuals had organized this corporation for the purpose of constructing homes for sale. The stock was held by the Donatos as their community property. At the time the note was executed the corporation was in serious financial difficulty. It had constructed 32 homes which it was unable to sell and it was indebted to the extent of approximately $30,000.00 to various construction firms. One of these creditors was the appellee Fishburn, d/b/a City Sheet Metal, who was entitled to enforce a mechanic's lien against the houses. The filing of such a lien would have forced the corporation into bankruptcy, according to Mr. Donato, inasmuch as the company was unable to pay its debts.
In consideration of appellee's agreement not to file his mechanic's lien against the property of the corporation, Donato made, executed and delivered to him the Promissory note which is the subject of this litigation, in the principal amount of $2,711.00, payable 90 days after date with interest at 6% per annum.
Other motivating factors which led Donato to enter into the agreement were as follows: Up until the time the corporation commenced to have financial trouble he personally had a good credit rating and he did not want that credit rating or feeling of trust in him destroyed; what he hoped to do eventually was to get his money back which he had invested in the corporation and he wanted the opportunity and time to make the attempt. It also appears that if he could have retrieved the situation he would have benefited financially by way of salary and further remuneration from the corporation.
On re-direct examination Donato testified as follows:
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Finally, it should be noted that the corporation did not become bankrupt and is still in existence.
Appellants present one assignment of error which in effect attacks the legal sufficiency of the evidence to support the judgment. They rely on the following grounds for reversal:
1. That the obligee on the note knew and agreed that the note was intended to be Donato's sole and separate obligation and to give him judgment against the community in contravention of this manifest intention would be to award him more than he bargained for.
2. That there was sufficient evidence in this case to overcome the presumption that a debt contracted during coverture is a community debt, inasmuch as the undisputed testimony shows that the note in question was given purely as an accommodation, without intention to benefit and without actual benefit to the community. Hence, say appellants, the rule applies that an accommodation note signed by the husband alone, which does not benefit the community estate is his separate debt.
It is, of course, well settled that a debt incurred by a married man during coverture is presumed to be a community obligation, and that the burden is on one attempting to overcome the presumption to prove his contention. Cosper v. Valley Bank, 28 Ariz. 373; 237 P. 175; McFadden v. Waston, 51 Ariz. 110, 74 P.2d 1181; Morgan v. Bruce, 76 Ariz. 121, 259 P.2d 558. It is also well settled that if any reasonable evidence supports the judgment of the trial court, it will be sustained.
With respect to appellants' contention that the circumstances surrounding the execution of the note show an agreement between the debtor and the creditor that the debt would be the separate obligation of the maker only, we believe that appellant reads more into the testimony than is actually present. Assuming that one of the men at City Sheet Metal wanted Mrs. Donato to sign the note and that Mr....
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Perez v. Campbell
...property system perhaps is indicated. Emma Perez was a proper nominal defendant in the Pinkerton lawsuit, see Donato v. Fishburn, 90 Ariz. 210, 367 P.2d 245 (1961), but she was not a necessary party there. First National Bank of Mesa v. Reeves, 27 Ariz. 508, 517, 234 P. 556, 560 (1925); Bri......
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Johnson v. Johnson, 15298-PR
...773 (1979). The finding of the trial judge will be sustained if there is any reasonable evidence to support it. Donato v. Fishburn, 90 Ariz. 210, 213, 367 P.2d 245, 246 (1961). The record in the present case reveals that the husband borrowed sums of money during the marriage and used his se......
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Peagler v. Phoenix Newspapers, Inc.
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Perez v. Campbell
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