Massie v. Elgadorado Gold Star Min. Co.

JAMES, J.

This appeal was taken by defendant from the judgment and from an order denying defendant’s motion for a new trial. On the evidence as shown by the bill of exceptions, we are of the opinion that the judgment cannot be sustained; and it will be unnecessary to notice particularly errors assigned by appellant which do not refer to the question of the insufficiency of the evidence to justify the decision of the court.

Plaintiffs sued upon two promissory notes alleged to have been executed by the defendant, each for the sum of five hundred dollars; the first alleged to be of date May 15, 1910, and the second of June 15, 1910, each payable one year after date, with interest at the rate of seven per cent per annum. It was alleged that plaintiffs were not in possession of the promissory notes at the time suit was brought, but that they were informed and believed that the same were in possession of the defendant. The defendant by answer specifically denied the making of the promissory notes and denied that it had possession of any notes. It appeared that at the time the notes were alleged to have been made one Sims was president of the defendant company. Plaintiff Lou Massie testified that Sims borrowed the money from her and her husband, the coplaintiff. "When asked by whom the first note was signed, she answered that it was signed by “Sims.” As to the second note, the following interrogatory was put to her: “And this second note, the one dated June 15, 1910, or thereabouts, was signed the same as the other note, or signed as president of the Eldorado Gold Star Mining Company?” to which the witness answered, “Yes, sir.” Sims testified as a witness and stated that he borrowed the money and signed the notes with his own name, adding thereto the words: “President of Eldorado Gold Star Mining Company.” He gave no testimony as to any alleged particular authority given him by the company to borrow money. Later in his testimony he added that the notes had also been signed by the secretary of the company. When

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asked what was done with the money, he said: “The first money, there was a writing-desk, typewriter, carpet, some little fixtures we had there, went down to the mine twice, carried down parties twice to investigate, to take out stock with the company, and of course that cost money. ■ Q. Do you know how the second five hundred dollars was used? A. Pretty much the same way. We were trying to get started and the money did not last very long.” Plaintiff John Massie testified that he at one time demanded payment of the full amount of the notes from one Folke, secretary of the company, and that Folke gave him a note, which was in form a statement reading as follows: