Mahana v. Van Alstyne

SHAW, J.

The plaintiffs sued the defendant to recover judgment upon a promissory note executed by defendant to

[726]

plaintiffs on April 17, 1915, for two thousand five hundred dollars, payable July 1, 1915. The defendant in answer admitted the execution and nonpayment of the note, but alleged, in effect, that the same was executed without any valuable consideration.

The facts stated in the findings and shown by the uncontradicted evidence are as follows: Katharine Van Alstyne and Guy Van Alstyne were husband and wife. On July 31, 1914, said Guy Van Alstyne and the defendant executed a note to the plaintiffs for five thousand dollars and a deed of trust upon certain land which was the separate property of the defendant, as security therefor. Said note was given for the personal debt of Guy Van Alstyne to the plaintiffs. Thereafter it was discovered that the note was not for the correct amount and an accounting was had between Guy Van Alstyne and the plaintiffs, whereby it was ascertained that his debt to them was only $4,174. Thereupon, on November 5, 1914, the first note and deed of trust were canceled and Guy Van Alstyne and the defendant executed to plaintiff a new note for $4,174, and a new deed of trust on the same real property to secure said new note. This note was made payable two yéars after said date. Thereafter, on April 17, 1915, the plaintiffs, at the requ'est of defendant, canceled and returned to the defendant said note and deed of trust of November 5, 1914, in consideration whereof the defendant exéeuted to plaintiffs the note for two thousand five hundred dollars herein sued on. There was no consideration for this note other than that disclosed by the foregoing facts. The court below decided that said note was only collateral security for the previous debt of' the defendant’s,husband and was not supported by any consideration. Judgment was given for the defendant and the plaintiffs appeal.

The facts stated do not support the conclusion that the note was without consideration. The conclusions of law and the judgment were erroneous. There was a valuable consideration for the original note for five thousand dollars to the extent of the debt due from Van Alstyne to the plaintiffs at the time it was executed. The new note for $4,174, executed on November 5, 1914, and made payable two years after said date was given in consideration of the cancellation of the old note and deed of trust. It was therefore supported by a valuable consideration. The plaintiffs surrendered the old note for