Stockton Savings Bank v. McCown

MELVIN, J.

Plaintiff appeals from the judgment and from the order denying its motion for a new trial.

The suit was based upon a rejected claim against the estate of Sidney Newell deceased and the only question necessary for decision is whether or not the court erred in holding that the claim, as presented, was fatally defective. The record discloses the following state of facts: In 1902 S. W. Newell was indebted to Stockton Savings Bank in a large sum of money. A settlement was made resulting in the giving of a note by him to that corporation. No part of the debt was an obligation of his father, Sidney Newell. In 1906, by a note dated January 3d, S. W. Newell agreed to pay the amount which was due in the earlier note amounting to a sum in excess of eighteen thousand dollars. Sidney Newell, who was an officer of the bank, called his son into his office one day and saying that the bank wanted further security for the debt of the younger Newell presented to the latter a joint note which the

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father had already signed. S. W. Newell signed it. This note was dated October 20, 1906, and on the end of it was written: “Security for the payment of 'a note of S. W. Newell, dated January 3, 1906,” and the court found that the later note was in fact so given as such security. Two payments were made subsequently upon the debt of S. W. Newell, both amounts so applied having been realized from sale of certain securities deposited as collateral for the earlier note.

After the death of Sidney Newell, the plaintiff presented to the executor of his estate a claim based upon the note of October 20, 1906. With reference to this claim the court found:

“That said purported claim did not contain a copy of said note dated January 3, 1906, signed by S. W. Newell, for which said note set out in said purported claim was given as security and no copy of said note of January 3, 1906, was attached to said purported claim and said purported claim contained no statement of the amount unpaid on said note of January 3, 1906, above referred to and failed to show that said note of January 3,1906, for which said note set out in said purported claim was given as security, had not been paid.” The claim was rejected by the executor and this suit was consequently instituted against the estate of Sidney Newell.