Richardson v. Marshall

PRESTON, J.

This appeal presents for determination merely a disputed question of fact. Respondent sued to recover from appellants a balance of $2,046.85, plus interest and a $250 attorney fee, due him on a promissory note. Appellants’ answer alleged fear and duress in obtaining

[585]

said note, but the trial court found that it had been given freely and voluntarily, and without any duress which would operate to defeat their liability thereon.

The facts are substantially as follows: Respondent procured a judgment against defendant Errol Marshall in the sum of $4,000, upon which execution was taken out and levied against the property and business of said defendant. Said defendant thereupon filed a voluntary petition in bankruptcy and was regularly adjudged a bankrupt by the United States district court. With the various other creditors, respondent filed his claim, based upon the above-mentioned judgment. In furtherance of an attempted settlement with creditors, at the conclusion of the bankruptcy hearing, appellants signed a note for $4,200, payable to respondent, this being the full amount of his judgment and claim, upon the understanding that as soon as the assets of the bankrupt were apportioned and paid to creditors, respondent would credit the note with the amount received as his

pro rata

of said assets, and would accept a new note for the balance remaining due. Several months later this was done and the new note then executed is the basis of this action.

Said appellant Errol Marshall made the regular payments called for by the said note, and further made an advance payment of $500, in return for which, at his request, respondent entered of record a satisfaction of the original judgment. Thereafter said appellant continued his regular payments on said note until some time in 1922, when this respondent brought an action against him for default as to one $50 payment then overdue. In that case the court found that default as to said installment had been waived and gave judgment for the defendant (appellant here). Thereafter said appellant continued making payments in accordance with the provisions of the note until February 1, 1924, the balance due having by that time been reduced to $2,046. He then refused to make further payments and this action was instituted.