North Denver Bank v. Freeby, Civ. 4-781.

• Decision Date: 11 August 1967
• Docket Number: Civ. 4-781.
• Parties: The NORTH DENVER BANK v. Glen C. FREEBY et ux.
• Court: U.S. District Court — Northern District of Texas

285 F. Supp. 74

The NORTH DENVER BANK v. Glen C. FREEBY et ux.

Civ. 4-781.

United States District Court N. D. Texas, Fort Worth Division.

August 11, 1967.

Robert Maddox, Fort Worth, Tex., for plaintiff.

Wm. L. Bagby, Jr., Arlington, Tex., for defendants.

OPINION

BREWSTER, District Judge.

Plaintiff, The North Denver Bank, filed this suit to collect the original principal balance, plus interest and attorneys' fees, due on a promissory note dated July 2, 1963, executed by the defendants, Glen C. Freeby and wife, Gertrude L. Freeby, as well as certain other individual co-makers and ABC Enterprises, Inc., a corporate co-maker. Defendants filed an answer admitting the execution and delivery of the note but pleading payment or satisfaction of the same by the prior repossession of "property" by the plaintiff of a value sufficient to settle all sums due on the note. Defendants' answer further alleged that notations appearing on the back of the note reflected on their face that additional advances "on said note" had been made and repaid and the repayment constituted extinguishment of the original principal sum due on the note.

On April 13, 1967, the deposition of Glen C. Freeby was taken, and in response to the questions propounded the witness made the following admissions:

(1) Both he and his wife executed and delivered the note sued upon, along with and in the presence of the other co-makers.

(2) Immediately after the defendants and the other co-makers executed the note sued upon, ABC Enterprises, Inc., (referred to as ABC Corporation in the deposition) was credited in its account with the plaintiff, The North Denver Bank, with a deposit of $15,000.00.

(3) Neither of the defendants had ever paid any sums of money or other consideration of any kind or character to apply on interest or principal maturing on said note sued upon.

(4) Defendant was of the opinion that the note sued upon had been paid in full and that he had so pled payment of the same in his answer to plaintiff's original complaint based solely on the following facts:

(a) The testimony of one Sam McMorrine (a co-maker on the note held by plaintiff) elicited by written interrogatories in a suit now pending in the District Court in and for the City and County of Denver, State of Colorado, being Civil Action No. B-66119, and styled G. C. Freeby vs. Sam McMorrine, et al., was to the effect that interest on the note had been paid on three separate occasions and the note extended, and that although the note was past due and in default, an arrangement to discharge the same by the transfer to the bank of the Brookside properties was being negotiated.

(b) Testimony of one Russell W. Bartels (likewise a co-maker on the note sued upon) given in his oral deposition taken in the above captioned suit to the effect that a verbal agreement was being worked out with the President of The North Denver Bank for extinguishment of the note, with an excerpt from such purported deposition testimony being exhibited by the defendant and included as Exhibit 3 in defendant's deposition.

(c) The $15,000.00 advanced by The North Denver Bank on the date of the execution of the note sued upon was not advanced to the defendants Glen C. Freeby and wife, Gertrude L. Freeby, individually, but was deposited to the credit of one ABC Enterprises, Inc., a corporation, and thereafter immediately paid over to The North Denver Bank. The defendant's testimony being admittedly based on what he alleged to be a copy of a bank statement of ABC Enterprises, Inc. which he, the defendant, exhibited at the time his deposition was taken and now appearing as Exhibit 4 to such deposition.

After the defendant Freeby stated the above three reasons why he had no obligation on the note in question, he was asked, as appears on page 26 of his deposition, the following question and gave the following answer:

"Q All right. Now, are there any other reasons that you say that you have paid this obligation or that it had been paid and extinguished on your behalf other than what you have already stated?

"A No. See, I was separated from ABC Corporation in September of 1964. A notice went out. I questioned some of the operations, and the notice went out that I was no longer connected with ABC Corporation, and after that date I can't tell you what happened."

Subsequent to the transcription of the deposition of defendant Freeby, plaintiff filed its motion for summary judgment supported by affidavit and incorporating the deposition of the defendant, Glen C. Freeby, praying for judgment as a matter of law. Defendant filed an answer to plaintiff's motion for summary judgment supporting same by affidavit of the defendant, Glen C. Freeby, and an affidavit by his attorney of record, William L. Bagby.

Defendant's answer or reply to plaintiff's motion for summary judgment alleges that a fact issue exists as to the balance due on the note sued upon by virtue of the entries appearing on the back of the note, which entries are purportedly quoted. The entries...