Walker Bros. Bankers v. Janney

• Decision Date: 05 August 1930
• Docket Number: 2882.
• Citation: 290 P. 413,52 Nev. 440,53 Nev. 477
• Parties: WALKER BROS. BANKERS v. JANNEY. [*]
• Court: Nevada Supreme Court

290 P. 413

52 Nev. 440, 53 Nev. 477

WALKER BROS. BANKERS v. JANNEY. ^[*]

No. 2882.

Supreme Court of Nevada

August 5, 1930

Appeal from District Court, Lincoln County; E. P. Carville, Judge.

Action by Walker Brothers Bankers, a corporation, against John Janney. From a judgment in favor of defendant, and from an order denying its motion for a new trial, plaintiff appeals.

Reversed.

A. L Scott, of Pioche, and James Ingebretsen, of Salt Lake City Utah, for appellant.

F. E Wadsworth, of Pioche, for respondent

DUCKER C.J.

This is an action on a promissory note which reads as follows:

"$4751.00. Salt Lake City, Utah,

"April 19, 1920.

"One year after date, for value received, I promise to pay to Walker Brothers Bankers, at Salt Lake City, Utah, or order, Forty Seven Hundred Fifty One Dollars with interest at the rate of four (4) per cent per annum, from date until paid, both before and after judgment, interest payable monthly. And I hereby agree, that in case this note is collected after maturity by an attorney, either with or without suit, to pay Five Hundred Dollars attorney's fee.

"[Signed] John Janney."

The parties will be designated as in the lower court. In his answer defendant admits the execution of the note, but alleges that there was a failure of consideration. In this connection a contemporaneous oral agreement is set up to the following effect: Prior to the date of the note, certain Nevada corporations were indebted to plaintiff in the sum of $4,751. These corporations were then insolvent and unable to meet said obligation. One E. O. Howard, as cashier and agent of plaintiff and in its behalf, agreed with defendant that if he would execute and deliver said note in lieu of said indebtedness of said corporation, in consideration thereof plaintiff would co-operate with the defendant in financing the Pioche Mines Company, a corporation. It is alleged in the answer that defendant relied upon the promise and agreement of the plaintiff and would not otherwise have executed the note. Matters are set out in the answer to show a violation by plaintiff of the alleged agreement.

A counterclaim was set up, but as no evidence was introduced in support thereof, it needs no further mention.

The agreement pleaded in the answer was denied in plaintiff's reply and was alleged therein to be ultra vires of said plaintiff bank, against public policy, and void.

The case was tried before a jury, which returned a verdict for defendant. Plaintiff's motion for a new trial was denied. This appeal is taken from an order denying its motion for a new trial and from the verdict and judgment.

There is but one question to be determined: Is the evidence sufficient to establish the contemporaneous agreement claimed by defendant? We are of the opinion that it is not. The lower court concluded that the evidence on this issue was conflicting and for this reason denied the motion for a new trial. The defendant takes the same view. While the evidence is conflicting as to the agreement asserted, it is not of that substantial kind to foreclose the reversal of the judgment for insufficiency of evidence. Taken in its entirety, the evidence in this case brings it squarely within the facts and ruling of Smith v. Goodin, 46 Nev. 229, 206 P. 1067, wherein we reversed the judgment, notwithstanding there was evidence to support it. In Smith v. Goodin, plaintiff's judgment recovered in the lower court rested on the testimony of one witness, which was flatly contradicted by the testimony of the defendant and which latter testimony was so corroborated by other circumstances in evidence as to make it clear that on the whole evidence a wrong conclusion had been reached. This is the situation here. The verdict of the jury rests upon the testimony of the defendant Janney. He testified to the making of the agreement with one E. O. Howard, vice president of the plaintiff bank. The latter testified that no such agreement was entered into, and his testimony is borne out by the circumstances to such an extent as to indicate clearly that the verdict finds no reasonable basis in the evidence. On the trial of the case plaintiff introduced in evidence the note sued on, proved that it was the holder thereof, that the note was unpaid, and rested its case. Whereupon the defendant, John Janney, took the stand as a witness in his own behalf. He admitted the execution of the note, and his version of the transaction which resulted in the agreement claimed is substantially that said E. O. Howard, then vice president of the plaintiff bank, met him on the street in Salt Lake City and requested him to come to the bank and see him, which he did on April 19, 1920. Howard produced two notes which he had on his desk, one of which was made by the Bullion Transportation Company and indorsed by the defendant, and one P. B. Locker, as guarantors. The other note was signed by defendant and P. B. Locker. There was no mention made by Howard of the latter note. Howard had the former note right in front of him and said: "John, what are you going to do about this bull con note?" Defendant testified that he made this reply to him: "I said to him--'Mr. Howard, I can see how those notes can be made good. I am a big holder of stock of the Pioche Mines Company and if I can finance the Pioche Mines Company--put that company on its feet--the effect of those two notes would be very small. If you will cooperate--your bank --in financing that company, I am ready right now--ready to finance the company and I will personally assume all those obligations,' and Mr. Howard said to me: 'Will you make your personal note?' and I said, 'Yes.' Then he said, 'All right--make it a four per cent. note.' So I in that conversation committed myself to go to work and finance the Pioche Mines Company--putting this business on its feet. I said, 'Then I will be in a position to assume those obligations,' and I agreed to do so. *** I said to Mr. Howard: 'Mr. Howard, you know that I didn't get any money on either note'--personally I got no money and I reminded him further of the fact that the bank had loaned the money before I signed the note."

The foregoing is all the testimony there is having any tendency to establish an agreement. It will be observed that it is most indefinite. No specific terms or conditions are stated. The most that the testimony tends to establish is that in consideration of the execution of the note by defendant, plaintiff was to co-operate in financing the Pioche Mines Company. How it was to co-operate, either by furnishing money or otherwise, does not appear.

Mr. E O. Howard testified for plaintiff. In regard to the transaction with the...