Opinion
Argued October 21, 1930
Affirmed February 17, 1931
Appeal from Circuit Court, Lane County, G.F. SKIPWORTH, Judge.
Suit by Merton Brown and another against W.A. Brown and another. Decree for defendants, and plaintiffs appeal.
AFFIRMED.
C.A. Wintermeier, of Eugene, for appellants.
W.W. Calkins, of Eugene (Calkins Calkins, of Eugene, on the brief), for respondents.
This is a suit for the cancelation and discharge of a negotiable promissory note, not yet matured, for $2,000, payable ten years from date, and two mortgages given to secure the payment thereof, one chattel, the other real.
There is no allegation of fraud, duress, accident or mistake. The sole ground alleged for the relief sought is an alleged promise by the payee to construct certain cabins on plaintiffs' premises, which promise, the complaint alleges, has not been performed. The answer denies the making of the promise and alleges that the note and mortgages were given for a valuable consideration.
Where one has given negotiable paper in return for a promise which has been broken, he is entitled to the equitable relief of rescission and to the surrender of the negotiable paper if not yet matured, in order to prevent its negotiation by the holder to a bona fide purchaser for value without notice to whom the maker would be liable. See 3 Williston on Contracts, § 1464; 4 Pomeroy, Equity Jurisprudence, (3d Ed.), § 1377. But plaintiffs are not entitled to the relief sought for the reason that plaintiffs have failed to show by a preponderance of the evidence that any such promise was made or that the note was not given for a valuable consideration. The learned trial court, who heard the evidence in the case and who was better able to judge of the credibility of the witnesses than this court, found that the note and mortgages were given for a valuable consideration and are valid and enforceable obligations. We have carefully read and considered the testimony in the case and concur in the finding of the court below.
The decree, therefore, will be affirmed.
BELT and KELLY, JJ., concur.