Shelton v. Culley

ROSS, J. This was an action by Culley, as indorsee, against Shelton, as maker, to recover on a negotiable promissory note. The defendant in his answer admits the execution of the note, but alleges it was given without any consideration, and that plaintiff became the owner .thereof after it was due and with notice of the failure of consideration. He further alleges the note was given as evidence in part of what the payee, O. B. Nay, was to receive in the [531] event of a successful sale of a block of stock of a certain mining corporation to be organized by defendant and said O. B. Nay and others, and that such stock was not sold, and therefore the note was without consideration. The case was tried before the court without a jury, and verdict and judgment entered for plaintiff for the amount sued for. Defendant’s assignments of error are directed at the sufficiency of the evidence to support the judgment, it being contended that the evidence showed plaintiff was not a holder of note in due course. The conflict of evidence on that issue was squarely before the trial court; he saw the witnesses and heard them testify; his opportunities for correctly weighing the evidence were better than ours, and we therefore defer to his judgment, as is the rule in this jurisdiction. The judgment of the lower court is affirmed. McALISTER, C. J., and LYMAN, J., concur.