Van Hagen v. First State Bank of Clovis

KERRIGAN, J.

This is an action to recover the sum of $1,080, alleged to he the reasonable value of a certain promis

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sory note owned by plaintiff and wrongfully retained by defendant.

The ease was tried before a jury. At the conclusion of the testimony there was an instructed verdict for plaintiff for the sum claimed. Defendant moved for a new trial, and in support of the motion specified, among other things, the insufficiency of the evidence to justify the verdict, and assigned as error certain rulings of the court. This motion was denied, and defendant appeals from the order and from the verdict and judgment.

From the evidence it appears that a Mrs. Amer and one Cadwallader were indebted on a joint note executed by them to the State Bank of Clovis in an amount approximating one thousand one hundred dollars. Mrs. Amer was desirous of taking this note up, and induced Van Hagen, the plaintiff herein, to assist her in so doing. In October, 1914, they went together to the defendant bank, and there met a Mr. Norrish, its president and manager, to whom they stated their business. It cannot be clearly ascertained from the testimony of Mrs. Amer and the plaintiff Van Hagen what arrangement was made between the parties, but it does appear from the testimony of Norrish that he received and accepted a certificate of deposit for the sum of five hundred dollars from Van Hagen, which sum was credited on the Amer and Cadwallader note. It further appears that Van Hagen at this time executed his promissory note in favor of the bank for the sum of six hundred dollars. This note was unsecured, and Norrish insisted that some collateral be furnished to insure its payment. Van Hagen at that time was the owner of a note for one thousand dollars, referred to in the evidence as the Kepley note, and which note is the subject of this action, and he indorsed this note over to the defendant bank as security for the payment of his unsecured note to the bank for six hundred dollars. Norrish took the Kepley note, retained the Amer and Cadwallader note and also the note of Van Hagen, and informed the parties that the Amer and Cadwallader note would be delivered up when the Van Hagen note was paid. The matter remained in this unsettled condition for over two years until the filing of this action' on November 17, 1916.