Moore v. Trinity Oil & Gas Co.

BARNARD, P. J. This is an action on two promissory notes. Each note was executed by the Trinity Oil and Gas Company, was dated June 5, 1954, and was payable 90 days after date. Each note was for $5,000 and was payable' to [222]Walter de Courcy. Bach note was endorsed “Pay to William J. Moore Jr or his order. Walter de Courcy.” Among other things, the complaint alleged, as to each note, that at the time said note matured and subsequent thereto it was presented to Trinity Oil and Gas Company; that Trinity failed to pay said note; that notice of dishonor was given to Walter de Courcy; and that “following receipt of notice of dishonor defendant Walter de Courcy promised plaintiff that he would pay said note.” The answer of de Courcy alleged, among other things, that he had transferred these notes to the plaintiff in connection with a deal in which $4,000 was to be paid to the plaintiff out of a certain escrow; that he was to pay the notes only if this amount was not paid from the escrow; that payment from the escrow within a short time appeared probable; and that the plaintiff should be estopped from prosecuting this action until it is determined whether or not the plaintiff will receive said $4,000 from the escrow. The prayer was that the plaintiff take nothing and that he be required to deposit the notes in court awaiting the results from the escrow.

Neither of the defendants appeared at the trial although they were represented by counsel. The defense presented was based upon the failure of the plaintiff to present the notes for payment to Trinity on the due date, and the failure to give timely notice of dishonor to de Courcy. The note was due on September 3, 1954. The plaintiff testified that he presented the notes for payment at the office of Trinity on September 7; that no one was there; that thereafter he made many calls at the Trinity office but found no one there; that about the middle of October he saw the vice president of Trinity who told him that Trinity did not have the money to pay the notes; that during this period he had made efforts to contact de Courcy without success; that on November 15,1954, he sent a telegram and letter to de Courcy; and that after receiving this letter and telegram de Courcy called him by phone and promised to pay the notes, saying “I’ll have the money for you in a few days.” The letter thus referred to was received in evidence. In this letter the plaintiff stated that at the time he gave the money to de Courcy he had told him that he would have to reassign the notes to someone as he needed the money; that he had had to pick up the notes and pay off the obligation to one Wakely; and that he must have the money or bring suit. The plaintiff testified that he had assigned the notes to Wakely but before doing so he had told de Courcy about the terms of the assignment; that de Courcy