Donovan v. Kemper

THE COURT.

In this action the plaintiff’s complaint in substance alleged that in consideration of a loan of one thousand five hundred dollars to the defendant, he and Mrs. C. B. McMorry, plaintiff’s assignor executed and delivered their joint promissory note in the amount of the loan to George W. Locke; that Mrs. McMorry was merely an accommodation maker of the note; that she received no part of the borrowed money, hut that it was all received and retained by the defendant, and that plaintiff’s assignor paid to Locke, the holder and owner of the note, the sum of four hundred dollars for the use and benefit of the defendant. The defendant’s answer admitted the execution of the note, but denied every other material allegation of the plaintiff’s complaint. Judgment was entered in favor of the plaintiff

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and against the defendant for the sum of four hundred dollars with interest thereon amounting to the sum of one hun-. dred and twelve dollars.

The appeal from the judgment cannot he considered because it was not taken within six months from the entry of the judgment. This is concededbut it is insisted upon the appeal from the order denying the defendant a new trial, which comes here upon a bill of exceptions, that the trial court should have granted the defendant’s motion for a non-suit.

A motion for a nonsuit may not be granted if there be any evidence tending to sustain the plaintiff’s cause of action. In the present ease Locke, the owner and holder of the note, testified as a witness upon behalf of the plaintiff that the defendant, a druggist, was dissatisfied with his business partner, and made an application to plaintiff’s assignor, Mrs. McMorry, for a loan of money sufficient to purchase the interest of his partner. Mrs. McMorry did not have the money, but she requested the witness to make the loan to the defendant, and volunteered to sign the latter’s note for the same. The loan and note were made accordingly, and to the best of the recollection of the witness the defendant in person received the money. This witness further testified that the defendant paid part of the sum due on the note at the rate of fifteen dollars per month, and that when he ceased making such payments Mrs. McMorry upon demand paid the sum of four hundred dollars which was credited on the note on account of the principal due. The defendant from time to time thereafter paid the interest as it accrued on the note. A. E. Shaar, bookkeeper for Locke, the owner of the note, and a witness for the plaintiff, testified as to the making of the note, and that the sum of one thousand one hundred dollars of the principal and all of the interest was paid by the defendant, but that four hundred dollars of the principal was paid by plaintiff’s assignor, Mrs. McMorry, and that all of Locke’s dealings concerning the note subsequent to its making were had with the defendant save and except as to the payment of four hundred dollars by Mrs. McMorry.