GIBBS v. CHRISTENSEN

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Docket Number

No. 5169.

Attorney(S)

Peterson, Baum Clark, for Appellants. Whether or not the taking of a new note or a series of new notes from one of several makers of an original note operates as payment of the original note is purely a question of the intention of the parties when the new note or notes are executed. (8 C. J. 569, 570, 571; Stanley v. McElrath, 86 Cal. 455, 25 P. 16, 26 P. 800, 10 L.R.A. 545; Brink v. Stratton, 112 App. Div. 299, 98 N.Y. Supp. 421; Chandler v. Brainard, 14 Pick. (Mass.) 285.) Walter H. Anderson, for Respondent. The burden of proving the affirmative defense of payment or a novation rests upon the defendant, and he had the burden of proving each and every element necessary for sustaining his affirmative defense. ( Bradley v. Harwi, 43 Kan. 314, 23 Pac. 566; Webb v. National Bank of the Republic, 67 Kan. 62, 72 Pac. 520; Blenz v. Fogle, 127 Wn. 224, 220 P. 790; 21 R. C. L., sec. 78, p. 76; Appeal of Kimberly (Pa.), 7 Atl. 75; Canonsburg Iron Co. v. Union Nat. Bank (Pa.), 6 Atl. 574.)

Judges

GIVENS, J.

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CLARENCE GIBBS, Respondent, v. HARVEY CHRISTENSEN, A. L. ANDREASON, JOE CHRISTENSEN, JOHN ROGHARR, Appellants.

GIVENS, J.

Certain notes signed by defendants were past due and unpaid. New notes, signed by Harvey Christensen only, were delivered by him to respondent. The old notes were retained by respondent and neither the old or new ones being paid, he brought suit on the old notes. All signers except Rogharr defaulted. He contends that the new notes were delivered and accepted as payment in full. Respondent urges that they were renewals only and insists on the continuance of the obligation against all the signers on the old notes. At the conclusion of the testimony both parties moved for a directed verdict; hence only a question of law was presented. The question now is whether there was sufficient evidence to support the conclusion of the court viewed as a verdict of the jury in favor of the respondent, not whether there was conflicting evidence which should have been submitted to the jury. ( McCall v. First Nat. Bank, ante, p. 519, 277 P. 562; Oregon Short Line R. Co. v. Mountain States Tel. Tel. Co., 41 Idaho 4, 237 P. 281.)

The burden of proof was on appellant to show that the new notes were taken as payment. ( Anglo-California Trust Co. v. Wallace, 58 Cal.App. 625, 209 P. 78; Bradley v. Harwi, 43 Kan. 314, 23 P. 566; Webb v. National Bank of the Republic, 67 Kan. 62, 72 P. 520; Blenz v. Fogle, 127 Wn. 224, 220 Pac. 790; 21 R. C. L. 76, sec. 78.)

That the new notes were given and accepted as payment must be clearly proven. ( Anglo-California Trust Co. v. Wallace, supra; Newman v. Nickell, 50 Cal.App. 138, 194 P. 710; Georgia Nat. Bank v. Fry, 32 Ga. App. 695, 124 S.E. 542; Lynes v. Holt-Taylor Merc. Co. (Mo.App.), 268 S.W. 702; Exchange Nat. Bank v. Schultz, 113 Neb. 346, 203 N.W. 496; Frost v. First State Bank T. Co. (Tex.Com.App.), 276 S.W. 222; Sainsbury v. Wapato Fruit etc. Co., 132 Wn. 455, 232 P. 331.)

The evidence was of such a nature as to justify the court's conclusion that the notes were not accepted as payment. ( Smith v. Thomas, 42 Idaho 375, 245 P. 399.)

The judgment is affirmed. Costs awarded to respondent.

Budge, C.J., and T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

CLARENCE GIBBS, Respondent, v. HARVEY CHRISTENSEN, A. L. ANDREASON, JOE CHRISTENSEN, JOHN ROGHARR, Appellants.

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