Dellarowe v. Kirchner

THOMPSON (IRA F.), J.

The plaintiff recovered a judgment in the court below in the sum of $1500 against the defendants Kirchner and Bartel, the complaint having been dismissed as to the defendant Seoville. The defendant Emil Kirchner prosecutes this appeal from the judgment.

The facts necessary to an understanding of the case are as follows: Some time during November, 1922, the defendant George Bartel executed and delivered to plaintiff’s assignor, Jack L. Dawson, eight promissory notes in the principal sum of $200 each, bearing interest at seven per cent and maturing at intervals of thirty days apart. In addition to being signed by the defendant Bartel, the notes

[600]

were also executed by his wife, Frances Lee Bartel, and one Louise Dawson. Shortly after the execution of the notes plaintiff’s assignor made application to the appellant for a loan, offering as collateral security seven of the notes. Appellant was unwilling to state the amount he would loan, but did agree to and did advance $150, and requested Jack' L. Dawson, plaintiff’s assignor, to call back within a day or two and appellant would state the amount he was willing to loan. Dawson made several trips to appellant’s office thereafter, but was unable to find him in for ten or fifteen days. About thirty days after the advance was made the appellant indorsed the seven notes which had been indorsed and delivered over to him as collateral to the defendant George Bartel. The court has found the foregoing facts and, in addition, that Dawson offered to appellant and to Bartel the principal sum of $150, together with interest thereon, and demanded redelivery of the notes, but that each of them refused. The principal contention of appellant is that he had a right to assign to the defendant Bartel his claim for $150 (or to indorse the note therefor, which, however, the court has found upon substantial evidence was not executed) and as an incident thereto to transfer the collateral security. He therefore asserts that the following portions of findings numbers 2.and 3 are not supported by the testimony:

(1) From finding No. 2: “That the said Emil Kirchner at that time agreed to and did advance to the said Dawson the sum of $150.00 and requested the said Dawson to call by his office within a day or two and he would be' tibíe to state just how much money he would loan to the said Dawson upon said security, and that in the meantime he' would investigate the security. That no note or other written evidence of indebtedness was executed or delivered by the said Dawson to the said Kirchner to represent the said advance of $150.00.” ' '