Dankert v. Lamb Finance Co.

MOORE, P. J.

Appeal from judgment on a promissory note..

Respondent Archie H. Dankert sued the Lamb Finance Company and its vice-president, L. L. Poyet,- on a 90-day promissory note in the principal sum of $10,000 signed in the following manner:

Lamb Finance Co.

By (W. A. Angione)

(L. L. Poyet)

[501]

As may be seen, the form of the signatures creates an ambiguity as to whether Mrs. Poyet signed in her capacity as an officer of the finance company only or as an individual comaker of the note. The trial court heard evidence of the circumstances surrounding the signing of the instrument in order to clarify this ambiguity and found that Mrs. Poyet signed the note in her individual capacity as an accommodation maker. Although Mrs. Poyet appeals, she does not contend that the evidence is insufficient to support the findings. .

Following the judgment, appellant moved for a new trial primarily on the grounds that (1) certain evidence had been newly discovered; and (2) there had been ‘‘ error in law occurring at the trial and excepted to by said defendant.” The motion was denied.

In an affidavit supporting her motion for a new trial, Mrs. Poyet alleged that in preparing for other litigation she had discovered for the first time “what purported to be a copy of [the] promissory note . . . payable by Lamb Finance Co., to Archie H. Dankert, and signed by Lamb Finance Co., by W. A. Angione as president, and L. L. Poyet as vice-president; that across the face of said promissory note written in red pencil appears the word ‘copy’ in handwriting which appears to affiant to be that of . . . F. J. McFarland;

“That during the trial of said action, F. J. McFarland testified that the word ‘renewed’ also written in red pencil across the face of [a prior note by the finance company in favor of respondent upon which Mrs. Poyet had no personal liability] . . . was written on there by him”; that he admitted this fact after previously denying that he had any recollection of the prior note; that the “copy” could not have been discovered earlier in the exercise of due diligence.