Gottbehuet v. Fox

DRAPEAU, J. By a complaint containing two causes of action plaintiff sought to recover on two promissory notes for $15,000 each, executed and delivered to him by defendants. One was dated September 6, 1946, and was set out in the first cause of action. The other, dated September 9, 1946, was the subject of the second cause of action.

The answer admitted the execution and delivery of the two notes. As an affirmative defense, defendants alleged that they received the sum of $15,000 and gave plaintiff the note set out in the second cause of action. That some time thereafter, plaintiff represented to them that he had lost this note. No one could remember the date of it. As a result, defendants executed a new note, dated September 6, 1946, as set forth in the first cause of action. Defendants also alleged and claimed throughout the trial that there was but one loan of $15,000 made to them by plaintiff; that there was only one note evidencing such loan and that this note was reissued on the representation of the loss of the original note. It was further alleged that the loan had been fully paid and discharged.

Plaintiff testified at the trial that he lent defendants $15,000 on January 28, 1946, by delivering to them two checks: one for $10,000 and the other for $5,000. A few months later, he asked defendants to give him a note to cover this loan, which they did, paying the interest from January 28th in cash. A month or so later, plaintiff lost this note and in August he mentioned this fact to defendants. The note for $15,000 dated September 6, 1946, was given to plaintiff to replace the lost note. On September 9, 1946 plaintiff delivered to defendants another $15,000 and they gave him the note of even date as security.

■ Defendants were president and secretary, respectively of Mayfair Companies. Plaintiff was employed by the corporation. In 1948, when the notes were about two years old, plaintiff pressed defendants for payment. Defendants directed that he withhold $100 to $200 each week from collections he was making for the Mayfair Companies, and “they in turn would reimburse Mayfair Companies for the amount I was withholding. ’ ’

From that time until September 18, 1950, plaintiff withheld [338]from collections a total of $14,190 which he credited to principal and interest of the note of September 6, 1946, reporting such withholdings to defendants’ secretary.

On September 18, 1950, plaintiff presented a statement to defendants showing a balance of $4,410 due on the $15,000 note of September 6th. Defendants thereupon gave him a note for this balance. A notation across the face thereof shows payment as of March 15, 1951.