Lincoln Holding Corp. v. Levering

SHENK, J.

This is an appeal from a judgment for the plaintiff on a promissory note for $2,500 executed by the

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defendant and appellant, N. L. Levering, who will be referred to herein as the defendant.

Prior to the execution of the note sued on the plaintiff was the holder of a promissory note for $5,000 executed by the Big Bear Realty Corporation, recovery on which would be barred by the statute of limitations on December 4, 1928. The defendant was an indorser on said note. The plaintiff was intending to sue on the $5,000 note and sought out the defendant indorser for a settlement. Pursuant to an agreement between the parties hereto the defendant executed, under date of December 1, 1928, the note sued on herein and delivered the same to the plaintiff, the plaintiff in turn agreeing to surrender the $5,000 note to the defendant.

The defendant filed a cross-complaint for the cancellation of the note sued on and for damages for the failure of the plaintiff to deliver the $5,000 note to the defendant prior to December 4, 1928. It was alleged in the cross-complaint that the parties agreed that the defendant should execute and deliver to the plaintiff a promissory note for $2,500 payable in six months; that in consideration thereof the plaintiff was to “immediately indorse, assign and deliver” the $5,000 note to the defendant; that the $5,000 note was not delivered to the defendant until long after the same had become outlawed, and that by reason of the delay there was no consideration for the $2,500 note and that the defendant had been damaged thereby in the sum of $2,500.

The trial court found in favor of the plaintiff on the issues presented by both the complaint and the cross-complaint. On the appeal eighteen specifications of error are assigned. They need not be specifically noted. The substance of all of them is that the evidence is insufficient to support the findings and conclusions of the court that there was a valuable consideration for the $2,500 note and that the defendant suffered no damage by the plaintiff’s failure to deliver the $5,000 note to the defendant prior to December 4, 1928.

Unquestionably the evidence upholds the finding and conclusion that the $2,500 note was supported by a valuable consideration. It is undisputed that the $5,000 note would become barred on December 4, 1928. The defendant was an indorser on that note and presumably liable for the full