Nelson v. Schumacher

ARCHBALD, J.,

pro tem.

Plaintiff, as assignee of her husband, F. 0. Nelson, sued defendant on a promissory note executed by him. From a judgment in favor of plaintiff, defendant has appealed.

Appellant urges: (1) that there was no delivery of the note; (2) that no definite finding was made by the trial court on appellant’s affirmative defense; and (3) that the findings are not supported by the evidence.

The note was dated February 9, 1924, and was payable thirty days after date. Plaintiff testified that her husband assigned the instrument to her on March 9, 1924, and that the principal was her money, invested for her by her husband. F. 0. Nelson testified that he placed some securities belonging to his wife in an unlocked tin box belonging to himself, which he kept in the vault of a bank of which defendant was president; that while he, Nelson, was on a trip to Montana the bank collected the sum of approximately $1,000 on one of the securities, and that defendant told him later that he, defendant, “had used the money that came into the bank on a collection and had placed the note in my cash box in lieu of it”. The evidence of the defense is the same as that of plaintiff, so far as the collection, use of the money and the execution of the note are concerned, and is also to the effect that Nelson handed defendant the securities and told him to hold them as security for signing a bond for

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the release of plaintiff, and. that Nelson told Schumacher to “go ahead and use whatever money comes in on collections for yourself or for any other obligation in order to protect the bank”. Nelson testified that defendant took the money without his knowledge. Defendant’s evidence is also to the effect that the securities were placed by him in a safety deposit box in defendant’s name, and not in Nelson’s box, and that the tin box belonging to Nelson was always kept locked.

It will be seen at once that there is a sharp conflict in the evidence as to delivery. The court accepted as a fact the story told by plaintiff’s assignor, and in view of the conflict we are bound by the decision. By placing the note in the tin box belonging to Nelson and telling the latter of what he had done, defendant showed a clear intention to deliver the note to him in lieu of the money taken; and when Nelson later took the box out of the bank, with the note and securities in it, he accepted defendant’s delivery and perfected it, as he had a right to do under the state of facts shown by plaintiff’s evidence.