Bechhold v. Burkhart

WOOD (Fred B.), J. October 17,1952, plaintiff Glendolyn C. Bechhold commenced an action against defendant Harold R. Burkhart as maker and defendant Walter G. Nellis as endorser of a promissory note for $15,000 alleging that $6,377 of the principal and 5 per cent interest thereon from May 6, 3952, remained unpaid. The trial court found those allegations true and rendered judgment accordingly. Defendants, in behalf of their appeal, challenge the sufficiency of the evi[446]dence to support a finding against them upon their asserted counterclaim and a finding that the statute of limitations had run against the counterclaim.*

The counterclaim consisted of loans of money allegedly made by Burkhart to Bechhold evidenced by seven checks in various amounts executed and delivered during the period September 12, 1947, to December 19, 1949, in the aggregate sum of $11,004.01.

Mrs. Bechhold testified positively that these checks were not loans to her by Mr. Burkhart; that she never borrowed any money from him; that if she wanted to borrow any money, she went to banks.

Burkhart had no documentary evidence other than the checks themselves and they did not show what they were for. He was unable to recollect any conversation with Mrs. Bechhold concerning these alleged loans. He was unable to testify positively that they were in fact loans. For example, as to one of the checks which bore the designation “Account L” in the lower left-hand corner, he said “I imagine” that the designation meant the check was a loan from him to Mrs. Bechhold but he could not be sure that he had had any conversation with her in regard to it. Concerning another check, asked if it were a loan or not, he said “I don’t know for sure, because I have no record on it except the cheek.” As to another check, one in the amount of $1,000, he said the check was the only document he had and he could not possibly remember any of the circumstances which fixed in his mind the recollection that it was a loan. Asked if he could tell the circumstances surrounding it he said “I couldn’t possibly. It would be a vague memory. I have no way of knowing.” In response to similar questions concerning another cheek he said “My answer would be the same have nothing other than the checks.” Asked if there were any circumstances surrounding the issuance of that check which fixed it in his mind as a loan, he said “Well, the only thing I know is she [447]