Simpson v. Winkelman

KINCAID, J. pro tem.

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Plaintiffs appeal from a judgment that they take nothing against defendants. By first amended complaint, plaintiffs allege as a first cause of action that on September 15, 1958, defendants executed and delivered to one Orpha E. Simpson a promissory note in the gum of $4,000 with interest, receiving the consideration therefor; that no part of the principal and interest has been paid, plaintiffs became the holders of the note by assignment

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and that the whole is due, owing and unpaid, Byway of a second cause of action plaintiffs allege that on January 7, 1958, defendants executed and delivered to plaintiffs, as payees, a promissory note of $4,500 payable on demand and bearing interest at one per cent per annum. That no sum of principal or interest has been paid and that the whole thereof is due and owing. There is no allegation that defendants received any money or other consideration represented by this note. A third cause of action alleges that on October 13, 1957, Everett and Lola Ferguson, husband and wife, loaned defendants $3,600; that thereafter defendants executed a written acknowledgment of said debt but that no part of either principal or interest has been paid by defendants. That Lola Ferguson has since died intestate and her interest in said debt has passed to her husband Everett as manager of the community property, who in turn assigned said debt to the plaintiffs for collection.

The answer of defendants admits the execution of the written documents alleged in the three causes of action but denies that there is now due, owing or unpaid thereon any sum on either principal or interest. By way of affirmative defense to each cause of action, defendants allege that prior to the commencement of the action defendants transferred and delivered to plaintiffs certain real property in agreed full payment and satisfaction of each of the written obligations, including principal and interest, and that plaintiffs accepted the same.

The record discloses that plaintiff Dorothy and defendant Marjorie are sisters. Prior to January 7, 1958, plaintiffs were the owners of certain unimproved real property located in the City of Hawthorne. Plaintiffs approached defendant Dale with a proposal for improving this property by construction thereon of a four-unit apartment building in partnership with defendants.