Pezzoni v. Greenwell

SHAW, J.

The defendants C. F. Smith and S. W. Smith appeal from the judgment in favor of the plaintiff. They are partners doing business under the firm name of Smith Brothers.

The plaintiff sued the defendants to obtain a decree canceling a certain promissory note signed by her, dated August 18, 1914, for $625, due sixty days after date, payable to the order of Henry Greenwell and by him indorsed to the defendant C. F. Smith and S. W. Smith. The basis of her action was that her signature to the note was obtained without consideration and by the device of leading her to believe that she was signing a different instrument and not a promise to pay money. The appellants filed a cross-complaint alleging the execution of the note, its indorsement to them in due course of business and for a valuable consideration before maturity, and asking judgment for the amount thereof. The plaintiff answered the cross-complaint denying that the indorsement of the note by Greenwell to the appellants was in due course of business or for a valuable consideration.

On the subject of the indorsement the court found: “That the said note was not received by the said defendants, Smith Bros., in due course of business and for a valuable consideration, in that the court finds that the said defendants and cross-complainants, Smith Bros., did not at the time of receiving the said note, or otherwise, part with anything of value on account thereof, and that they gave no credit on account thereof, nor did they otherwise change their legal status in any particular by reason thereof.” The appel

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lants claim that this finding is contrary to the law and the evidence.

The evidence on this subject consists of the testimony of S. W. Smith and Henry Greenwell. It appears that about the time of the execution of this note Smith Bros, and the defendant Greenwell executed an agreement whereby Green-well promised to pay Smith Bros, the sum of $1,250 in installments of one hundred dollars, payable on the 18th of each month thereafter, and Smith Bros, agreed that they would immediately give to Greenwell the possession and use of a certain automobile, and that if each of the said payments was promptly made when due until the whole was paid, they would then sell to Greenwell the said automobile, but that title thereto should remain in Smith Bros, until after they should make the sale referred to, upon payment of the principal and interest of the sum to be paid by Greenwell. The next payment upon this contract became due on September 18, 1914. S. W. Smith testified that in September, immediately after this payment became due, he demanded of Greenwell the possession of the automobile or some additional security for the payment of the sum agreed to be paid by the contract; that Greenwell desired to keep the car and offered to indorse this note to Smith Bros, as collateral security for moneys owing on the contract; that Smith accepted this offer and Greenwell thereupon indorsed said note to Smith Bros. Greenwell, on the other hand, testified that he was unable to make the hundred dollar payment of September 18th; that Smith demanded payment thereof; that he told Smith that he was unable to pay it then and that he would rather Smith would take back the car, and offered to let him do so; that Smith refused the car and thereupon Greenwell offered him this note as collateral for the monthly payment of one hundred dollars then due, and that Smith agreed to this and accepted the note for that purpose, whereupon he indorsed it as above stated and. delivered it to Smith. The evidence shows that the hundred dollars was never paid. The automobile was wrecked within a few days after the transfer of the note and it was taken by Smith Bros, some five or six months thereafter and sold for the sum of three hundred dollars, which was credited on the money due under the contract of lease for