Spencer v. John

• Decision Date: 27 April 1921
• Citation: 33 Idaho 717,197 P. 827
• Parties: CRAIG L. SPENCER, Appellant, v. D. M. JOHN, Respondent
• Court: Idaho Supreme Court

197 P. 827

33 Idaho 717

CRAIG L. SPENCER, Appellant, v. D. M. JOHN, Respondent

Supreme Court of Idaho

April 27, 1921

NEGOTIABLE INSTRUMENTS-PROMISSORY NOTE-ALTERATIONS-INSUFFICIENCY OF EVIDENCE-MOTION FOR NEW TRIAL-TRIAL JUDGE'S CERTIFICATE.

1. Where there is no substantial evidence in the record on appeal to support the verdict or judgment of the court below the judgment will be reversed.

2. A ruling of the district court on a motion for new trial will not be reviewed in the absence of the certificate required by rule 24 of the rules of this court, showing what papers were submitted to the trial judge and used by him on the hearing of the motion, and that such papers constitute all the records, papers and files used or considered by said judge on such hearing.

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed L. Bryan, District Judge.

Action to recover upon a promissory note. Judgment for defendant. Reversed and remanded.

Judgment reversed and a new trial granted. Costs awarded to appellant.

Paul Pizey, for Appellant.

There is no substantial testimony opposed to that of appellant. Appellant's evidence in this case consisted entirely of depositions and documentary evidence. The evidence of respondent was all taken orally before the jury. They saw and heard the respondent and his witnesses, and did not see or hear the appellant or his witnesses. Therefore, it would be unfair for this court not to examine the evidence throughout and decide the case on the question of its sufficiency. (Roby v. Roby, 10 Idaho 139, 77 P. 213; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054; Parsons v Wrble, 19 Idaho 619, 115 P. 8; Stoneburner v Stone-burner, 11 Idaho 603, 83 P. 938; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945, 17 L. R. A., N. S., 497; Council Imp. Co. v. Draper, 16 Idaho 541, 102 P. 7.)

Where there is a substantial conflict in the evidence, the verdict will not be set aside unless plainly contrary to the decided weight of evidence. We believe that rule should be invoked in the case. The respondent's evidence is not positive and is only suggestive. It is not even contradictory of appellant's evidence. (Hawkins v. Pocatello Water Co., 3 Idaho 766, 35 P. 711.) Where the evidence of one side is positive and the other shows want of recollection all things being equal, the positive testimony should be given the greater weight. (Idaho Mercantile Co. v. Kalanquin, 8 Idaho 101, 66 P. 933.)

Perky & Brinck, for Respondent.

The ruling on a motion for a new trial will not be reviewed in the absence of a certificate of the judge who passed upon the motion as to the papers, matters and things used in ruling on the motion. (Crowley v. Croesus Gold etc. Min. Co., 12 Idaho 530, 86 P. 536; Doust v. Rocky Mountain Bell Tel. Co., 14 Idaho 677, 95 P. 209; Bumpus v. Moore, 31 Idaho 668, 175 P. 339; Pedersen v. Moore, 32 Idaho 420, 184 P. 475; Lyons v. Lambrix, ante, p. 99, 190 P. 356; Talbot v. Collins, ante, p. 169, 191 P. 354.)

The only question is: Is there any evidence in the record which, if standing alone and undisputed, would support defendant's contention that at the time the note and mortgage were executed and delivered there was contained therein a provision that defendant should not be personally liable on the note? If there is any evidence to sustain such defense, this court will not-disturb the verdict of the jury. (Consolidated etc. Min. Co. v. Morton, 32 Idaho 671, 673, 187 P. 791; Bafus v. Peeper, ante, p. 324, 194 Pac, 96; Labonte v. Davidson, 31 Idaho 644, 175 P. 588; Lisenby v. Intermountain State Bank, ante, p. 101, 190 P. 355; Lyons v. Lambrix, supra.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This is an action to recover upon a promissory note executed and delivered by respondent to one Effie L. Minton, and by her transferred before maturity to appellant. This appeal is from a judgment in favor of respondent and from an order denying a motion for a new trial.

The material facts are as follows: Respondent owned certain lands in Washington and Idaho counties, which he traded to M. J. Minton for a business block in Grangeville, Idaho county, assuming a mortgage of $ 6,000 thereon, and giving a note for $ 1,500, dated May 15, 1914, and due two years thereafter, payable to Effie L. Minton, wife of M. J. Minton, and secured by a second mortgage upon the property, which property prior to the commencement of this action was sold under the first mortgage and the security exhausted.

Respondent in his answer admits the execution and delivery of the note and mortgage, but alleges that there was indorsed upon the note, before execution and delivery thereof, a provision that personal liability was waived, that the mortgaged property was accepted in full of all obligations due from defendant to Effie L. Minton, and that the statement upon the back of the note had been fraudulently and wrongfully erased.

Appellant, whose deposition was read at the trial, testified that when he purchased the note it did not contain any provision waiving personal liability, and that the note contained no other indorsement than that appearing upon it when it was introduced in evidence; that he had refused to accept the note indorsed to him without recourse, that such indorsement had been erased by M. J. Minton, and the indorsement as now appearing had been made thereon prior to the delivery of the note to him by the Mintons. In this he was corroborated by A. G. Worthington and M. J. Minton.

Appellant's evidence is complete, definite and certain in explaining the erasures on the note. All of his testimony is by deposition, and when these depositions were taken he had only the pleadings to guide him in making them. He had no notice that there was any claim that the waiver may have been written upon the mortgage and erased therefrom, yet at the trial respondent was permitted to testify that the statement in question was either written upon the note or the mortgage. On direct examination respondent testified that:

"A. I refused to give him the note at the time without having that written out on the back of the note that...