Ehman v. Moore

SHOEMAKER, J.

Defendants Louis C. and Eduarda S. Moore appeal from a money judgment for plaintiff John B. Ehman in an action to recover on a promissory note.

Appellants’ sole contention is that the trial court erred in terminating the trial and ordering judgment for respondent before appellants had had an opportunity to complete their defense. Under this general assignment of error, appellants specify that the trial court improperly ruled that the parol evidence rule precluded it from receiving appellants’ proffered evidence bearing upon three separate defenses : (1) that the promissory note sued upon was a mere sham or artifice and of no binding effect, (2) that there was a failure of consideration for the execution of the note, and (3) that respondent procured the execution of the note by means of false and fraudulent representations. Due to the state of the record on appeal, appellants’ position cannot be sustained.

The reporter’s transcript reveals the following: respondent testified to the execution, delivery and nonpayment of the note, except for a certain specified sum. Appellant Louis C. Moore then took the stand on his own behalf and testified that the note had been executed as a result of an oral agreement between himself, respondent, and one Grant, all of whom were then shareholders, officers and directors in the Cerneo corporation. It was agreed that the three men would purchase all of the Cerneo stock owned by Mr. Redding, a fourth shareholder who had instituted proceedings to compel dissolution of the corporation. Since appellant Moore, who served as attorney for the corporation, did not have sufficient

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funds to cover Ms portion of the stock, respondent agreed to loan him the necessary sum in return for the promissory note subject of this action. All three men further agreed, in their capacity as corporate directors, that appellant Moore’s retainer as attorney for the corporation would be increased from $75 to $300 per month. Of this amount, $100 per month was to be held back by the corporation and applied against the principal of the note. When the corporation subsequently became bankrupt, respondent commenced the instant proceeding on the note.

In addition to appellant Moore, the corporate bookkeeper, Mr. Mocettini, was also called as a witness for the defense. He testified that respondent had instructed Mm to withhold a specified amount from appellant Moore’s monthly retainer and credit it against the note.