Bank of America National Trust & Savings Ass'n v. Beard

SCHOTTKY, J. Appellant, as administrator, com-

menced an action against respondents to recover on a promissory note executed by respondents in favor of Cordelia McTarnahan, deceased, in the principal sum of $1,500. Respondents filed an answer denying that the promissory note had not been paid in full and alleging “that on June 14, [406194]9, Cordelia McTarnahan executed and delivered to the defendants an acknowledgment that said note was paid in full and acknowledging that she had received full payment thereunder and that she no longer had any claim against said defendants because of the execution of said promissory note.”

Following a trial before the court sitting without a jury, the court found in accordance with the allegations of the answer and rendered judgment in favor of respondents.

Appellant has appealed from the judgment and its sole contention is that the judgment is contrary to the evidence.

The record shows that Cordelia McTarnahan was the aunt of respondent George B. Beard. George B. Beard testified that partial payments were made on the note, in the total sum of $204.81, by three checks dated February 1, 1949, March 1, 1949, and June 12, 1949, respectively. On or about June 14, 1949, George B. Beard paid Cordelia McTarnahan $800 in cash, and received from her a written release signed by her, indicating that the note had been satisfied in full. This release was introduced in evidence and respondent George B. Beard testified that it was prepared at his aunt’s request and that she signed it.

Appellant offered no evidence to dispute the genuineness of the release, or to show that it had been obtained by fraud, coercion or mistake. The only evidence offered to support the contention that there is still a balance due on the note was the testimony of Leroy P. Anderson, appellant’s attorney at the trial. Mr. Anderson testified to conversations between Mrs. McTarnahan and respondent George E. Beard in April, 1950, made in the presence of Mr. Anderson and George McCartney, in which Mrs. McTarnahan asked respondent what he was going to do about paying the balance on the note, and in which said respondent stated that he would pay it as soon as he could make arrangements. Respondent George E. Beard denied having been asked that by Mrs. McTarnahan. He was not asked whether he had at that time promised to pay a balance still due, and there is no admission by him anywhere in the record of any such statement. George McCartney was not produced to give his version of the conversations in question. Appellant offered no other evidence.