Farris v. Sturner
| Decision Date | 12 February 1959 |
| Docket Number | No. 5964.,5964. |
| Citation | 264 F.2d 537 |
| Parties | Glenn C. FARRIS, Appellant, v. C. T. STURNER and Ila Mae Sturner, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
G. C. Spillers, Jr., Tulsa, Okl. (G. C. Spillers, Tulsa, Okl., was with him on the brief), for appellant.
Marvin T. Johnson, Tulsa, Okl., for appellees.
Before HUXMAN, MURRAH, and BREITENSTEIN, Circuit Judges.
In this diversity action appellant-plaintiff, Farris, sued to recover an unpaid balance of $6,889.09 on a promissory note, made by appellee-defendant Sturner and payable to R. J. Smith, and to foreclose a mortgage given by Sturner and his wife to secure payment of that note. Smith endorsed the note and assigned the mortgage to Farris. The defenses were that the note was given without consideration, that the endorsement and assignment were fraudulent, and that Farris was not a holder in due course. In a third-party complaint against Smith, Sturner asserted certain claims which are not pertinent to this appeal. After a jury trial, judgment was entered in favor of the defendants.
Farris, Sturner and Smith were all in the lumber business. Prior to the execution and delivery of the note in December, 1948, Sturner and Smith had engaged in various transactions which need not be detailed. Evidence for the plaintiff was that the note represented an account balance due from Sturner to Smith. Sturner testified that the note was given as an accommodation to assist Smith in financial difficulties in which he was then embroiled. In any event the note, dated December 10, 1948, and the mortgage, dated January 31, 1949, were, on March 22, 1949, deposited by Smith with Farris to secure the payment of a note then given by Smith to Capilano Timber Co., Ltd., to which Smith was indebted. In so receiving and holding the note and mortgage Farris was acting as the agent of Capilano.
With the assistance of Farris, Smith liquidated certain of his assets and paid off the Capilano debt. Thereafter Farris and Smith had a settlement between themselves of various claims which are not detailed in the record. Farris testified that in such settlement Smith received from him 64 shares of stock in the Glenn Farris Lumber Company and he, in his personal capacity, received from Smith the Sturner note and mortgage.
The note provided for monthly payments of $250 which were made regularly until the fall of 1950. After Sturner had failed to make three monthly payments, Farris, in accordance with the terms of the note, declared the entire balance due and payable. Thereafter the delinquent installments were paid and the default forgiven. On December 24, 1951, Sturner paid the installment due December 10, 1951, and made no payments thereafter.
The settlement between Farris and Smith was in January, 1952. The exact date was not stated by either of them. The stock certificate issued to Smith is dated January 3, 1952. In the absence of any contradictory evidence, this indicates that the settlement and transfer of the note and mortgage to Farris occurred on or before that day.
At the conclusion of the plaintiff's case the trial court found that Farris "did not personally gain an interest in the note and mortgage until about April of 1952" and that the note then "was in default by some three or four months." On the basis of such findings the court held that Farris was not a holder in due course and that any defenses which Sturner had as against Smith could be asserted against Farris. In defense, evidence was offered, and received over objection, of various items claimed by Sturner to be due to him from Smith by way of setoff. The case was submitted to the jury on the issue of failure of consideration and on the existence of any setoff. The jury returned a verdict for the defendants and judgment was entered cancelling the note and mortgage.
The finding of the trial court that Farris did not have any personal interest in the note or mortgage until "about April of 1952" has no support in the record. The evidence is that Farris became the holder, in his personal capacity, of the note and mortgage as a part of his settlement with Smith which occurred on or before January 3, 1952. At that time the note was not in default as no payment thereon was due until January 10, 1952.
In his brief, counsel for Sturner makes no effort to sustain this finding of the trial court. Instead he argues that Farris knew of an...
To continue reading
Request your trial
-
Zelinger v. Uvalde Rock Asphalt Company
...Hudspeth Pine, Inc., 10 Cir., 299 F.2d 874; Brown v. Alkire, 10 Cir., 295 F.2d 411; Lohr v. Tittle, 10 Cir., 275 F.2d 662; Farris v. Sturner, 10 Cir., 264 F.2d 537; Brodrick v. Derby, 10 Cir., 236 F.2d 35. Applying this standard, we are satisfied that the trial court's rulings on the motion......
-
United Telecommunications, Inc. v. American Television & Communications Corp.
...characterized as self-serving and inadmissible. See Stone v. Union Fire Ins. Co., 106 Colo. 522, 107 P.2d 241 (1940); Farris v. Sturner, 264 F.2d 537 (10th Cir. 1959). The rationale for rejection of such evidence is that a party may not create evidence supportive of its position. Three of t......
-
Golden West Construction Company v. United States, 6780.
...pulling on his own evidentiary bootstraps. See Leach & Company, Inc. v. Pierson, 275 U.S. 120, 48 S.Ct. 57, 72 L.Ed. 194; Farris v. Sturner (10 C.A.), 264 F.2d 537. But this does not mean that all writings with self-serving propensities are, ipso facto, inadmissible. In this instance, the p......
-
Adams v. Powell, 7951.
...is, whether the evidence introduced by the parties and inferences from it could cause reasonable minds to honestly differ. Farris v. Sturner, 10 Cir., 264 F.2d 537. It is apparent from the record that the plaintiff did not submit proof sufficient to demonstrate that the defendants failed in......