Fisher v. Cheeseman

BISHOP, J.

pro tem.

*

—Defendant Cheeseman appealed from the summary judgment entered against him upon plaintiff’s motion. We are reversing the judgment.

The complaint alleged the making of a promissory note on April 20, 1959, whereby defendant Cheeseman and the two other defendants promised to pay Florence May $43,500 in monthly installments of $300. Default in a monthly payment

[505]

would render the entire balance due, at the option of the holder. The present plaintiff became the holder on the first day of July 1961, at which times several monthly payments were allegedly in default, $37,800 remaining unpaid. That is the sum, plus interest and attorney fees, for which plaintiff sought and obtained judgment.

An answer was filed by defendant Cheeseman, in which he denied that any sum remained due and unpaid, although he admitted that he had not made any of the payments alleged to be delinquent. The denial is not surprising in view of his affirmative defense, which was that in July of 1960, Florence May and he had entered into an oral agreement “that the Corporation would substitute itself as the maker on the note for the sum of Forty Three Thousand Five Hundred Dollars ($43,500.00); that the Corporation would make the payments called for; that the makers on said note of $43,500.00 would be fully released as of that time.” In his answer Cheeseman further alleged: ‘ ‘ that the Corporation did substitute itself as new makers on the $43,500.00 note and did make payments on same until January 1, 1961; that the original makers on the $43,500.00 note were released; that all of the above were accepted by the assignor. ’ ’

Challenged by this answer the plaintiff gave notice that she would move to have defendant Cheeseman’s answer stricken and a summary judgment entered. As already indicated, the motion was granted and a judgment entered awarding plaintiff $37,800 plus interest against defendant Cheeseman.

In

Eagle Oil & Refining Co., Inc.

v.