Stubbins Hotel Co. v. Beissbarth

G!raoe, J. Appeal from the county court of Benson county, U. D. Comstock, Judge. This appeal is from the judgment of the county court of Benson county and from an order denying a motion for a new trial. The action is one to recover upon a promissory note for $347.42, together with the interest at the rate of 8 per cent, signed, by the defendants jointly. Williams was not served with the summons. Beissbarth answered separately, denying any consideration for the note; alleging that it was signed by him as an accommodation to the plaintiff, the payee in the note. Defendant also alleges that it was mutually agreed by and between defendant and the plaintiff, the payee, that the payee would not hold this defendant liable on the note and would save the defendant harmless. The court instructed the jury that the sole issue was whether the note was signed as an accommodation to the payee; that upon this question the burden of proof was on the defendant. The only ques [194] tion raised by this appeal relates to the correctness of that instruction. It reads as follows: “Gentlemen of the jury, it is admitted by the plaintiff and the defendant in this action that the Linden Hotel and the Stubbins Hotel Company are the same parties, or that the Linden Hotel is owned by the Stubbins Hotel Company. “The court instructs you, gentlemen of the jury, that it is admitted by the pleading's and appears conclusively from the evidence and plead1 ings that said note in controversy was executed on or about the 15th day of February, 1916, by the defendants E.- Beissbarth and J. V. Williams,that is, was signed by them and delivered to the plaintiff; that said note has not been paid by either the defendant E. Beissbarth or the defendant Williams; that demand has been made upon the said defendants for the payment of said note, and that said plaintiff is the owner and holder of said note, and that there is due thereon the sum of $341.-42, and interest thereon at 8 per cent since the 15th day of February, 1916. You should take these matters as the conceded facts in this case. They require no further consideration from you. The only matters in dispute in this case which must be passed upon by you are the conditions under which the note was executed and delivered; as I said before it is the contention of the plaintiff that said note was executed and delivered by the defendant E. Beissbarth as an accommodation maker for the defendant J. Y. Williams, and that the consideration therefor was the cancelation of a prior and existing indebtedness for a like amount due plaintiff from Williams, and the acceptance of the note in payment therefor. This the defendant E. Beissbarth denies and contends that he signed and delivered the note as an accommodation maker to the plaintiff, the Linden Hotel, at plaintiff’s request and that he did not receive any consideration therefor. Gentlemen of the jury, that is the only issue in this case. “Gentlemen of the jury, you have heard all of the testimony relating to this case and it is for you to determine which view of the matter is correct. In determining this matter you will take into consideration all the evidence offered, and the court instructs you that the burden of proof is upon the plaintiff to maintain the issue in this ease on his part by a preponderance of the evidence. It may be in a case that after the plaintiff has gotten in sufficient facts to entitle him to recover by a [195] preponderance of the evidence that recovery may be defeated by other facts set up in the answer by said defendants amounting to an affirmative defense in avoidance of the facts set up and proven by the plaintiff. In this case the defendant has set up that notwithstanding the fact that the note was executed and delivered by him, that he is not responsible thereon because at the time of the execution of the note it was executed by him solely as an accommodation maker for the benefit of the Linden Hotel, and that it was made without consideration and that it was agreed between himself and the Linden Hotel that he should not be held liable upon the said note. “Gentlemen of the jury, I charge you it is incumbent upon the defendant to prove all of the facts set up as an affirmative defense in avoidance of the facts set up by the plaintiff by a preponderance of the evidence. “I instruct you, gentlemen of the jury, that the mere fact that the plaintiff in this action received a benefit through Mr. Beissbarth signing the note in evidence would not malte the plaintiff the accommodated party nor excuse Mr. Beissbarth from paying the note. If the defendant E. Beissbarth executed and delivered the note sued upon to plaintiff for the purpose of paying the debt, if any, which Mr. Williams owed plaintiff, then the defendant is liable on the note, even though he was not personally indebted to the plaintiff.” The execution of the note is admitted by the answering defendant. It is admitted by both parties to the action that the Linden Hotel and the Stubbins Hotel Company are the same party; that the Linden Hotel is owned by the Stubbins Hotel Company. The case was tried to the court and a jury. The jury returned a verdict in favor of the plaintiff. Erom this, in the state of the record before us, the presumption is that the plaintiff offered competent proof of all the material allegations of the complaint. The evidence in the case is not before us and is no. part of the record on appeal, and every reasonable presumption must be indulged in favor of the judgment. The presumption is that competent evidence was offered at the trial to prove the material allegations of the complaint. An accommodation note is one, as a matter of law, upon which the accommodating party has placed his name without credit. His name is placed on the note for the purpose of accommodating the person to whom he lends his name and credit, and, in the absence of a [196] special agreement, without expecting to receive any benefit. The real issue in this case is whether the defendant signed the note as an accommodation to Williams or to the Linden Hotel, which is conceded the same as delivering it to the Stubbins Hotel Company. This question was fairly and fully submitted to the jury and the instructions of the court above set forth. The jury found in favor of the plaintiff. It must have found, therefore, that the defendant signed the note as an accommodation to Williams, and we must presume such finding is supported by the evidence, the evidence not being before us. Defendant also relied upon a special agreement with the payee, which is to the effect that it was mutually agreed by and between the defendant and the payee named in said note, that the said payee would not hold this defendant liable thereon, but would save him harmless from the effects thereof. The jury having returned a verdict in favor of the plaintiff, it must be presumed that the defendant failed to introduce competent testimony to sustain the alleged special agreement. In other words, the evidence not being in the record, we must indulge every presumption in favor of the judgment. We think there was no error in the instruction with reference to the burden of proof. The plaintiff established a prima facie case. Defendant denies he received any consideration for the signing of the note, and alleges he was an accommodation maker for the payee, and sets forth the alleged circumstances under which he signed the note. In such case, as a general rule, the burden of proof is upon the defendant to establish his defense. A plea of no consideration is an affirmative defense. Section 5882, Compiled Laws 1913, is as follows: “The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it.” Where, in the. defense to a promissory note, there is evidence that the note is obtained by fraud, duress, force, fear, or other unlawful means, or for an illegal consideration or under such circumstances as amount to fraud, it would seem it would be incumbent upon the holder of a note-in a suit thereon to prove by a preponderance of the evidence the good faith of the transaction and all the other material allegations of his complaint. We are clear, under all the circumstances in this case and considering the further fact that the evidence is not before us, that there is no error in the instruction given. The assigning of errors upon in [197] structions without making the evidence a part of the record-on appeal is not looked upon with favor and has been repeatedly disapproved by this court. State v. LaFlame, 30 N. D. 489, 152 N. W. 810; State v. Uhler, 32 N. D. 483, 156 N. W. 220, and in South Dakota in Mills v. Lehmann, 28 S. D. 347, 133 N. W. 807. Judgment and an order denying a motion for a new trial appealed from are affirmed, with costs.