Jones v. Wettlin

Decision Date30 October 1928
Docket Number1487
Citation271 P. 217,39 Wyo. 331
PartiesJONES v. WETTLIN, ET AL. [*]
CourtWyoming Supreme Court

APPEAL from District Court, Fremont County, HARRY P. ILSLEY, Judge.

Action by Edith A. Jones against Elizabeth Wettlin and another. Judgment for defendant, and plaintiff appeals.

Modified and Affirmed.

A. C Allen and O. N. Gibson, for appellant.

Defendants were estopped from claiming substitution, settlement or offset; renunciation must be in writing unless the instrument is surrendered; 4055 C. S.; Baldwin v. Daley, 83 P 724; Joyce Comr. Paper, 998; Pacific Power Co. v Clark, 32 Wyo. 284; parol evidence of renunciation is not admissible. Bushnell v. Elkers, 34 Wyo. 495. There was no evidence of accord and satisfaction, 1 C. J. 529; Perote v. Cooper, 29 P. 391; Davis v. Hopkins, 32 P. 70; an antecedent debt is not extinguished by a new note, without express agreement; Steinhart v. Natl. Bank, 29 P. 717; Mining Co. v. Bird, 44 P. 764; Brown v. Spofford, 95 U.S. 508; Butsch v. Smith, 90 P. 61; 1 C. J. 530. The evidence failed to show a novation, 1 C. J. 532; Lowe v. Blum, (Okl.) 43 P. 1063. Payment of renewal note is not payment of the original note in absence of agreement; Bank v. Lang, 174 P. 597; Bridge v. Life Ins. Co., 141 P. 375; Bank v. Penello, 210 P. 432; Andrews v. Bank, 203 P. 156; Banking Co. v. Briggs Co., 138 Cal. 724, 72 P. 352. The burden is on defendant to show payment by a preponderance of evidence, Esbensen v. Hover, 33 P. 1008. Parole evidence is inadmissible to vary the terms of a note. Enos v. Anderson, 93 P. 475; Welles v. Life Ins. Co., 113 P. 524; Brown v. Spofford, supra. There was no evidence that Squier Jones had authority to represent plaintiff. Corbett v. Waller, 67 P. 567, 21 R. C. L. 908-910. Scott v. Gilkey, 153 Ill. 168; Wees v. Page, 91 P. 768; Gilbert v. Globe Ins. Co., 178 P. 358; Kruger v. Vernon, 238 P. 1062; Baker v. Seaward, 127 P. 961. Possession of note at trial is prima facie evidence of ownership. Mining Co. v. Bird, supra; 8 C. J. 1003. The rule that a judgment on conflicting evidence will not be disturbed, does not apply where the evidence preponderated against the verdict. 4 C. J. 861. Baird v. Baird, 111 P. 79. The judgment of the Court was a dismissal of plaintiff's action. 5879 C. S. Mulhern v. Railway Co., 2 Wyo. 465; Sayles v. Wilson, 31 Wyo. 455; Byrd v. Blessing, 11 Oh. St. Re. 362. The admitted release of the indebtedness by Squier Jones was beyond the scope of his agency. Baker v. Seaward, 127 P. 961.

M. C. Burk, for respondent.

There is no question of renunciation, novation, or renewal notes. Defendant met the burden of proof and discharged it. Jones as plaintiff's agent, settled and discharged the indebtedness, plaintiff herself releasing the mortgage security. Plaintiff was only a nominal party, while Jones was in fact, the real party. An entry of satisfaction of a recorded mortgage is prima facie proof of payment of the debt secured. 8 Ency. Evidence, 767. One asserting the continued existence of a debt assumes the burden of proving it. Freming v. Parry, 24 Pa. St. 77. No explanation was given of the release. 15 Am. Ency. of Law, 880. 11 C. J. 693. 4695 C. S. The agency of Jones was fully shown, 2 C. J. 623; Graniss v. Hobby, 33 N.E. 486. Where a principal sued on contract made by his agent, the failure to produce his agent as a witness, creates a presumption against defendant. Bryant v. Lazarus, 139 S.W. 558, 22 C. J. 115.

A. C. Allen and O. N. Gibson, in reply.

The defense of substitution could be shown only by documentary evidence. 4055 C. S. It does not follow from the cancellation of the mortgage that the note was paid. Ivinson v. Hutton, 3 Wyo. 61, 119 U.S. 364. It is not even prima facie evidence of payment. There was no evidence showing the discharge of the original obligation. Jones not being plaintiff's agent, parties dealing with him are charged with notice. California Co. v. Harris, 267 P. 575, 2 C. J. 445. The judgment was in effect a non-suit and as such is disapproved by decisions of this court, Griggs v. Meek, 261 P. 126. Hall Oil Co. v. Barquin, 237 P. 255. The record shows a deficiency on the indebtedness remaining after foreclosure, and the judgment below should be reversed.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

Edith A. Jones, the plaintiff, brought this action against Elizabeth Wettlin and Herbert G. Wettlin, defendants. The court dismissed the plaintiff's action and rendered judgment for costs in favor of the defendants. The parties will be referred to herein as in the court below.

Plaintiff set forth twenty causes of action; the last will be referred to again later, and we shall for the present consider only the first nineteen causes of action. These were brought upon notes dated September 20, 1918, and due thirty days apart, commencing with about October 1, 1918. The notes were all given in connection with the purchase by the Wettlins of laundry equipment in the town of Riverton, and were secured by a chattel mortgage upon the property purchased, the mortgage being duly filed of record in Fremont County, Wyoming. The defendants pleaded payment and settlement of these notes by an assumption by one Hopkins of the indebtedness evidenced thereby. Mrs. Wettlin testified that subsequent to the execution of the notes, she, as owner of the laundry equipment, sold it to one Hopkins with the consent of Squier Jones, husband of the plaintiff; that at that time Hopkins assumed the indebtedness still due on the notes in suit and executed new notes to Squier Jones to take the place thereof; that the notes of Hopkins were accepted by Squier Jones in substitution and that it was agreed that the notes in suit should be surrendered; that this was not, however, done at the time, and that Squier Jones subsequently claimed that he made a mistake in the computation of interest thereon amounting to about forty or fifty dollars. The foregoing transaction, if true, constituted what is technically known as novation. 29 Cyc. 1131, 1136. The amount still due upon the notes in suit at that time does not distinctly appear, but judging from the testimony in regard to the amount still remaining due on the same indebtedness at a later time, it must have been approximately $ 2,000 or somewhat more. The same laundry equipment was subsequently re-purchased by Mrs. Wettlin and other notes, in turn, were substituted for the Hopkins' notes, but it is unnecessary, for the purposes of this case, to mention these subsequent transactions further, for if there was in fact a novation as above mentioned, that would extinguish the former indebtedness, according to the rules of the common law. 29 Cyc. 1136. The acceptance of a note of a third person unconditionally and with the agreement that it shall be in full satisfaction of the amount due on previous notes held by the creditor, operates as payment. 8 C. J. 572. Nor is it essential that the old notes should be surrendered or cancelled. 8 C. J. 574; Reeves v. Letts, 143 Mo.App. 196, 128 S.W. 246; Epstein v. Gradowitz, (Cal. App.) 76 Cal.App. 29, 243 P. 877. We think that there is sufficient evidence in the record to sustain the claim that the notes of Hopkins were taken in full satisfaction of the notes of the defendants. The testimony of Mrs. Wettlin stands uncontradicted. In addition to that, Squier Jones, husband of the plaintiff, knew all the facts; he was not produced as a witness by the plaintiff, and there is no explanation in the record of the reason thereof. This raised a presumption against the plaintiff. Studebaker Corporation of America v. Hanson, 24 Wyo. 222, 157 P. 582; Hines v. Sweeney, 28 Wyo. 57, 201 P. 165, 1018. And we think also that there is sufficient evidence to warrant the trial court in finding that the plaintiff authorized the transaction or ratified it. Her claim that Squier Jones, who represented her in the transaction, was not her duly authorized agent, cannot be sustained. The testimony shows that she personally released the chattel mortgage which was security for the notes in suit. She testified that she had no recollection of having executed this release. We have no reason to doubt that she told the truth in this, but she ought not to complain that this very circumstance may have been instrumental in persuading the trial judge that, as claimed by the defendants, she intrusted all of her affairs absolutely to her husband. She herself admitted that Squier Jones represented her in the transaction now in question, and that he had more or less authority to represent her at other times. There was also testimony to the effect that Squier Jones transacted all of the business in which the plaintiff was interested. In view of these facts, the finding of the court that she was bound by the actions of her husband cannot be disturbed, unless it is on account of the matter which we shall now proceed to consider.

2. Counsel for the plaintiff claim that she was not bound by the transaction above mentioned, because the release of the defendants was neither evidenced in writing, nor were the notes delivered up, and that either one or the other of these acts was necessary under the provisions of Section 4055, Wyo. C. S. 1920, (Sec. 122, Ch. 43, Negotiable Instruments Law), in order to discharge the notes in suit. That Section reads as follows:

"The holder may expressly renounce his rights against any party to the instrument before, at or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument, discharges the instrument, but a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing unless the instrument is...

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  • Nonproduction of Witnesses as Deliberative Evidence
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