Simpson v. Smith

BARDIN, J.,

pro

tem.

Plaintiffs, who are husband and wife, brought this action to recover a judgment for the balance due of the principal and interest of a promissory note made by defendant and her husband, E. S: Smith, since deceased, dated April 20, 1912, and payable one day after date “to M. L. Simpson or S. E. Simpson.” The defendant, who had judgment below, denies liability upon two grounds: (1) That there was no consideration for the promise of the defendant, and (2) that the signature of defendant to said note was procured under duress and through the undue influence of plaintiffs and the husband of the defendant.

The court found, in effect, among other facts, that the defendant did not, for value received, execute to the plaintiffs the promissory note sued upon; that the defendant had never received any consideration of any nature whatsoever for signing said promissory note; that there was no consid

[95]

eration for defendant signing said note; and “that no detriment of any kind or nature was suffered by the plaintiffs . . . or either of them by reason of said instrument.”

The affirmative allegations contained in defendant’s answer relative to the charge that plaintiffs procured the defendant’s signature to the note in question through duress and undue influence were adopted by the trial court in its findings as true, yet there is no evidence whatever in the record which sustains such findings. They are so clearly unsupported by the evidence that they were probably made through inadvertence.

From a review of the evidence adduced at the trial and which was believed by the trial court to warrant the finding that there was no consideration for the promise of defendant contained in the promissory note sued upon, we discover the following germane and uncontradicted facts:

[1]

The note in suit was the outgrowth of the demands of plaintiff M. L. Simpson for the payment of a prior promissory note, then due and unpaid, made by the husband of defendant and presumably payable, as stated in respondent’s brief, to both plaintiffs. The prior note was made previous to defendant’s marriage, and the consideration therefor had passed solely to the said husband of defendant and she was not obligated in any manner under it. Under pressure of plaintiff M. L. Simpson for payment of the first note, or that its payment be secured, the note in suit was drawn, dated, and signed by the husband of defendant and he thereupon handed the note to defendant for her signature. Several days later, and after its maturity, she affixed her signature to the face of the note and returned it to her husband, who thereafter delivered it to the plaintiffs with the understanding that it replace the first note.