Wallace v. Richards

• Decision Date: 09 October 1897
• Docket Number: 852
• Court: Utah Supreme Court
• Parties: W. W. WALLACE, APPELLANT, v. FRANK D. RICHARDS ET AL., RESPONDENTS

50 P. 804

16 Utah 52

W. W. WALLACE, APPELLANT, v. FRANK D. RICHARDS ET AL., RESPONDENTS

No. 852

Supreme Court of Utah

October 9, 1897

Appeal from the Second district court, Weber county. H. H. Rolapp Judge.

Action on a promissory note by W. W. Wallace against Frank D Richards and others. From a judgment for defendants plaintiff appeals.

Reversed.

Johnson & Murphy, for appellant.

Richards & Richards, for respondents.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

Plaintiff brought this action to recover upon a promissory note, of which the following is a copy: "$ 1,000. Ogden, Utah May 10, 1893. One year after date, for value received, we promise to pay to the order of W. W. Wallace, $ 1,000, payable in U.S. gold coin at the Commercial National Bank of Ogden, Utah, with interest at ten per cent. per annum, payable semiannually, from date until paid, both before and after judgment; and, if not paid at maturity, we agree to pay a reasonable attorney's fee for collection. [Signed] Frank D. Richards. Wm. H. Sells. B. H. Fisher. Due May 10, "94." The due execution and delivery of the note were admitted in the answer. The case was tried before the court without a jury, and the note received in evidence. It appears from the bill of exceptions that the defendant Richards was called as a witness for the defendants. From his testimony, it appears that he talked with one John D. Murphy, of Ogden City, concerning the loan of some money, in May, 1893, and that Mr. Murphy told him that he thought he could procure the money for him; that afterwards he signed the note to plaintiff, Wallace, and received $ 1,000 from Mr. Murphy; that he had had received all the money for himself; and that defendants Sells and Fisher had no part of it, but that they signed the note with him as accommodation makers. Plaintiff's attorney made objection to the admission of certain testimony, and the court allowed him to make his motion concerning the testimony at the close of the case. The witness gave further testimony to the effect that, before and at the time the note was signed, "I understood from Mr. Murphy that the note should be extended from maturity at least one or two years. I negotiated with Mr. Murphy with reference to making the loan, and gave him the note, when executed. He was the only person I had anything to do with. Murphy determined upon the acceptability of the other parties who signed the note. I understood that Mr. Wallace, the plaintiff and payee, lived in Chicago, but I have never seen him. About the time of the maturity of the note, I said to Murphy that I would like to have it extended, and at that time he remembered the conversation we had before. Q. Was the note extended? A. I understood so. Q. Well, what was said? A. I am uncertain just what was said, but that was the understanding. Mr. Murphy, at the time the note was due, said it would be all right, or something to that effect." It was presented for payment of interest about six months after it was due, and for payment about a year after. Defendants' attorney announced this was all the testimony for defendants, so far as Murphy's agency was concerned. Plaintiff's attorney moved to strike out the defendants' testimony on the ground that the proofs made did not constitute any defense to the action. The motion was denied, and the plaintiff duly excepted. On cross-examination of the witness, it appears that he had a talk with Murphy about getting the money two or three weeks before the note was given, when Murphy said he would try and get the money from an Eastern party. "I knew from whom I was getting the money when the note was executed. When the note matured, Murphy said it would be extended. I paid nothing for his promise to extend the note, and nothing was paid for that at any time. When the note was executed, Murphy thought it would be made for more than one year. I said. "We will take it for one year, with the privilege of an extension, as part of the contract.' I wrote the note myself, and did not put anything in it about the privilege of extension. I paid nothing for the promise to extend the note." Defendants Sells and Fisher testified, in substance, that they had no notice or knowledge of any agreement between Murphy and Richards as to extending the time of payment of the note; that they signed the note as accommodation makers, and had no part of the money; that the note was not presented for payment until about a year after it was due. No testimony was offered on the subject that plaintiff knew that Sells and Fisher were accommodation makers. At the close of the testimony, plaintiff's attorney moved for judgment against Sells and Fisher upon the grounds (1) that, as to defendants' understanding with Mr. Murphy, there is no testimony showing that he was authorized to make such agreement as the witness Richards testified at the time said note was...