Opinion
No. 21791.
Decided July 17, 1967.
Action by holder in due course of promissory note against makers to enforce payment in a specific sum alleged to be due thereon. Judgment for defendants.
Reversed.
1. BILLS AND NOTES — Holder in Due Course — Makers — One Payment — Dismissal — Balance — Appeal and Error. In action by holder in due course of promissory note against makers to enforce payment in specific sum alleged to be due thereon, where plaintiff's evidence established that "one payment" had been made by defendants and trial court granted motion for dismissal on ground that it could not be determined from the evidence what amount was due on note, held, trial court erred in dismissing action; it requires no computer to subtract $36.99 from face of note to determine balance due.
Error to the Superior Court of the City and County of Denver, Honorable Charles E. Bennett, Judge.
Arthur M. Frazin, Nathan Lee Baum, for plaintiff in error.
Kenneth C. Schoen, for defendants in error.
The parties will be referred to as they appeared in the trial court where plaintiff in error was plaintiff and defendants in error were defendants.
It was alleged in the complaint that plaintiff was the holder in due course of a promissory note and brought this action against the defendants, as makers of the note, to enforce payment of the sum of $1,810.92 alleged to be due thereon. The note was payable in installments of $36.99 per month beginning March 30, 1963.
The answer of the defendants contained a general denial. As an affirmative defense it was alleged that the original payee was guilty of fraud which induced the defendants to sign the note, and that the plaintiff was chargeable with notice of the fraud.
The plaintiff's evidence established the execution and delivery of the note to the original payee for a valuable consideration. The purchase by the plaintiff of the note in due course of business also was shown. In connection with the amount due, the evidence was that "one payment" had been made by defendants. At the close of plaintiff's evidence the defendants moved for dismissal of the action. The trial court granted the motion, apparently on the ground that it could not be determined from the evidence what amount was due on the note.
In the absence of any showing to the contrary, the evidence that "one payment" had been made on the note could only mean that one payment called for by the terms of the note had been made. It requires no computer to subtract $36.99 from the face of the note. We are at a loss to understand, under the record before us, how a judgment dismissing plaintiff's action could be sustained.
The judgment is reversed and the cause remanded for a new trial on all issues made by the pleadings.
MR. JUSTICE McWILLIAMS and MR. JUSTICE KELLEY concur.