Corwin v. Wells

*205 Burr, J. Plaintiff seeks to recover upon a promissory note for $2,000 executed and delivered to him by tbe defendant. Tbe defendant admits tbe execution and delivery of tlm note; but as defense alleges tliat tbis is tbe renewal of a note given in a transaction witb tbe plaintiff wherein plaintiff induced bim to become a director of tbe James Biver National Bank and to accept twenty shares of stock therein upon an agreement that when be ceased to be director áud desired to return tbe stock bis note would be surrendered to bim and that whatever dividends would be received from tbe stock would be applied as interest on tbe note. He further alleges that in 1927, 1928 and 1929 be notified tbe plaintiff be no longer desired to serve as director and offered to surrender bis stock upon tbe return of bis note. Tbe case was tried to tbe court — a jury being waived — and judgment was entered in favor of the plaintiff for tbe amount of tbe note witb interest, and defendant appeals. Tbe specifications of error set forth that the court erred in finding and entering judgment for tbe plaintiff; and “in denying and refusing tbe defendant’s motion to vacate tbe judgment herein and to enter judgment for tbe defendant and in tbe alternative for a new trial.” There are also four specifications of error of insufficiency of tbe evidence to justify tbe verdict. Tbe defendant was tbe sole witness. He says that in 1013 tbe. plaintiff told bim be bad ten shares of stock and would like to bavo tbe defendant as a director of tbe James River National Bank and be would turn over to tbe defendant tbe stock, tbe defendant to give bim a note for $2,000 at interest; that at any time tbe defendant did not want to be a director be could return tbe stock; that plaintiff at that time was tbe Vice-President of tbe bank; that be received stock issued in bis own name, accepted it, made and executed tbe note, became a director in January, 1914, and continued as director until October, 1929, at which time tbe bank was reorganized • and taken over by thu Bank corporation; that be became a director of tbe bank under the-new organization and remained as such director for a short time; that-tbe note which be gave for tbe stock was renewed and tbe present note' given; that all tbe time from tbe execution of tbe first note until and' including tbe year 1929 be paid interest annually; that when the bank was reorganized the stock of tbe James River National Bank which *206 be bad received “was called in and in return they issued him James River Holding Company stock, ten shares, the same number of shares he had with the James River National Bank;” that this new stock was issued October, 1929; that the old bank quit business as such and the new corporation took over the institution as the “James River National Bank and Trust Company,” that he gave up his stock in the old bank and took stock also in this reorganized bank; that the others did the same thing and that all the stock was turned in and the stock obtained from plaintiff was cancelled; that he became a director of the new institution and that he now has stock in the James River Holding Company; that when he ceased to be a director of the new institution he tendered to the plaintiff the stock in the holding company and asked for his note back. The defendant admits that he received and kept the dividends on the stock obtained from plaintiff and received salary as director; but nowhere does he say that any portion of this was applied on the payments of interest regularly paid by him. Defendant also admitted on the stand that from time to time he made oath to the United States Comptroller of the Currency to the effect that he was “the owner in good faith, and in his own right, of a number of shares of stock of the aggregate par value required by said statutes subscribed by him or standing in his name on the books of the said Association; that the same is not hypothecated or in any way pledged as security for any loan or debt.” He admits that when he asked the plaintiff to surrender the note and accept the return of the stock that the plaintiff said he did not remember making such an agreement;. and also admits that in 1931 plaintiff’s agent tried to collect the interest for 1930 and that at that time he refused to pay the interest, that he told him he was leaving on a trip but on his return he might pay it, that when told that times were hard and the plaintiff needed the money he stated that times were hard for him also, but offered to give some land in payment for this note; that he did not say he would not pay the principal and that up to and including 1929 he always paid the interest without being asked for it. The findings of the trial court, in a case properly triable to the jury, “are presumed to be correct, and when such findings are based on parol evidence they will not be disturbed unless shown to be clearly Opposed to the preponderance of the evidence even if they do not have *207 the force of a verdict.” Baird v. Goforth, 54 N. D. 805, 211 N. W. 587; Andersen v. Resler, 57 N. D. 655, 664, 223 N. W. 707. On review of tbe testimony we are satisfied there is ample evidence to sustain tbe findings and therefore tbe judgment is affirmed. Nuessle, Ob. J., and Cheistiajstson, Biedzell and BubKE, JJ., com cur.