Hanna v. Pipes

BARNARD, P. J. In 1935, Narcissa Hanna employed Samuel Taylor, an attorney at law, to collect three notes totaling $750, with interest at 7 per cent, all dated February 23, 1932. These notes were signed by the defendants and were payable to Mrs. Hanna “and/or” her former husband. Mrs. Hanna delivered these notes indorsed in blank to Taylor with instructions to collect them. A few small payments were made and on February 23, 1939, the date when the last of the three notes would become outlawed the defendants renewed the obligation by signing and • giving to Taylor two new notes, one for $745 and one for $223.50. These notes were made payable to Samuel Taylor and Narcissa Hanna, as joint tenants, one year after date with interest at 7 per cent. The defendants paid to Mrs. Hanna, on account of these notes, $50 on December 19, 1939, and $100 on October 2, 1942.

On February 16, 1944, one week before these notes would outlaw, Taylor brought this action on these two notes, naming Mrs. Hanna and himself as plaintiffs. The complaint is in the usual form, in two counts, setting forth copies of the notes and alleging that the plaintiffs are the owners and holders thereof, and entitled to receive payment. In their answer [108]the defendants denied generally each allegation of the complaint, denied specifically that any part of the notes is now due, owing and unpaid and, as an affirmative defense, alleged that any indebtedness alleged in the complaint has been fully paid and satisfied.

At the trial the defendants made some attempt to show that these notes had been altered, and to show both that the notes had been fully paid and that they had been satisfied and discharged in some other manner. While the evidence, including the testimony of the defendant husband, conclusively shows that the notes had not been paid in full the defendants relied upon a letter from Mrs. Hanna to them dated December 15, 1942, and upon an affidavit purportedly executed by Mrs. Hanna on November 24, 1947, a few days before the trial, as showing a complete satisfaction and discharge of the obligation. About two-thirds of the reporter’s transcript is taken up with the argument of the defendants’ counsel, in various forms and repeatedly made, to the effect that this action could not be maintained because Taylor had no such interest in these notes as would enable him to sue in his own name or which would prevent Mrs. Hanna from discharging him, and that Mrs. Hanna had not authorized him to bring the action. Near the conclusion of the trial on December 5, 1947, the question came up as to the mental condition of Mrs. Hanna, who was not present at the trial, and her competency to execute the affidavit offered and to understand the facts therein stated. The case was continued to allow an investigation to be made along that line. Mrs. Hanna died on January 2, 1948, before this investigation was made. On April 16, 1948, the plaintiffs’ motion for submission of the cause was granted, and it was further ordered that a motion made by the defendants to have the deposition of Taylor introduced as testimony be taken under submission. The court found in all respects in favor of the plaintiffs, and judgment was entered-in favor of Taylor for the balance due on the notes. The defendants have appealed from that judgment.