Keller v. McCarty

DUNN, J. — This is an action on a promissory note given by defendant McCarty to the Northwestern Investment Co. [19] The plaintiff! alleges that he is the owner and holder thereof. Before maturity the note was indorsed to Pocatello Security Trust Company and guaranteed by L. IT. Lathrop. All these persons and corporations were made defendants and all defaulted except McCarty. He answered, admitting the execution and delivery of the note, but set up the defense that there was no consideration therefor except a certain contract by which the Northwestern Investment Co. agreed to sell and McCarty agreed to buy certain lots in University Heights Addition to Pocatello, Idaho, and by which said investment company contracted and agreed that upon the payment of said note it would give McCarty a warranty deed to said property, free and clear of all encumbrances; that said investment company had not delivered said deed nor any deed to said lots nor any part thereof. The answer alleged the failure of said investment company to comply with its contract to improve said addition in grading streets, building sidewalks, constructing a water system, etc., and further that the investment company had wholly abandoned said addition. The answer further denied that the plaintiff was the owner or holder of said note except for collection. The case was tried before the court without a jury, and the court made findings sustaining the defense set up by McCarty. The court also found that plaintiff did not take said note by indorsement or otherwise from a holder in due course. Plaintiff appeals from the judgment entered in favor of defendant, and assigns errors all of which attempt to review the findings made by the court, but he brings no evidence to this court either by bill of exceptions or reporter’s transcript. We have, therefore, nothing before us .but the judgment-roll. In this situation we must assume that there was evidence before the trial court to warrant the findings made. (Jones v. Quayle, 3 Ida. 640, 32 Pac. 1134; Zion's etc. Inst. v. Armstrong, 6 Ida. 464, 56 Pac. 168; Hazard v. Cole, 1 Ida. 276; Montandon v. Walker, 2 Ida. 165, 9 Pac. 608; Shurtliff v. Extension Ditch Co., 14 Ida. 416, 94 Pac. [20] 574; McCormick v. Brown, 22 Ida. 52, 125 Pac. 197; Bergh v. Pennington, 33 Ida. 726, 198 Pac. 158.) An examination of the findings shows that they sustain the judgment, which must be affirmed. It is so ordered, with costs to respondent. Budge, C. J., and McCarthy, William A. Lee and Wm. E. Lee, JJ., concur.