First National Bank of Winslow, a Corp. v. Osborne, Civil 3038

• Decision Date: 04 November 1931
• Docket Number: Civil 3038
• Citation: 39 Ariz. 107,4 P.2d 384
• Parties: THE FIRST NATIONAL BANK OF WINSLOW, a Corporation, Appellant, v. CHARLES OSBORNE and EMMA OSBORNE, His Wife, Appellees
• Court: Arizona Supreme Court

4 P.2d 384

39 Ariz. 107

THE FIRST NATIONAL BANK OF WINSLOW, a Corporation, Appellant, v. CHARLES OSBORNE and EMMA OSBORNE, His Wife, Appellees

Civil No. 3038

Supreme Court of Arizona

November 4, 1931

APPEAL from a judgment of the Superior Court of the County of Navajo. W. S. Norviel, Judge. Judgment affirmed.

Mr. C H. Jordan and Mr. C. D. McCauley, for Appellant.

Mr. W E. Ferguson, for Appellees.

OPINION

LOCKWOOD, J.

First National Bank of Winslow, a corporation, hereinafter called plaintiff, brought suit against Charles Osborne and Emma Osborne, his wife, hereinafter called defendants, on a promissory note in the sum of $500, executed by defendant Charles Osborne in favor of plaintiff, and for interest alleged to be due on certain other notes similarly executed. The case was tried before the court sitting without a jury and judgment was rendered in favor of defendants, and the matter is now before us for review.

There are nine specific assignments of error, but we consider the case upon the legal propositions involved therein. The evidence, considered in its most favorable aspect in favor of defendants, as we must consider it under the oft-repeated rule of this court, shows the facts to be as follows:

Some time before the year 1927 John Williams was the owner of certain real estate upon which plaintiff held a second mortgage. The first mortgage was foreclosed, and R.C. Kaufman, who was during all the times involved in this action, president of plaintiff bank, bought the property in at the sale, taking title in his own name, to protect the bank's second mortgage. Thereafter Kaufman told Williams that if he would pay the debt to the bank, the property would be resold to him. Williams gave the bank certain notes, and upon payment thereof was to receive title to the land from Kaufman. Williams was working for Osborne, and the latter signed one of the notes as surety. For some reason Williams was unable to pay off the indebtedness, and gave up his contract to repurchase. Kaufman then offered to Osborne that if the latter would enter into a contract for the purchase of the land for $1,500 and pay some $469, the balance of the Williams indebtedness, plaintiff would release Osborne from further liability on the note guaranteed by him. Osborne paid the $469, and the contract for the purchase of the real estate was duly made between himself and Kaufman, Osborne executing in favor of the bank four notes for $250 each, and one note for $500, the latter being the one in controversy in this action, and the Williams notes and contract of purchase were canceled.

The contract was in the usual form of purchase and sale, but contained the following provisions:

"In the event of the failure to comply with the terms hereof, by the said second party, the said first party shall be released from all obligations in law or equity to convey said property, and said second party shall forfeit all rights thereto, including a forfeiture of all payments made by him on this contract at the time...