Opinion
April 1, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 324
Meer, Wolf & Slatkin, P.C., Albert B. Wolf, Denver, for plaintiffs-appellants.
Albert A. Norbont, Denver, for defendants-appellees.
VanCISE, Judge.
Plaintiff Carraher (Administrator) appeals a summary judgment entered in favor of defendants, the Felixes, in an action on a promissory note payable to plaintiff's decedent Wentzell. Finding that there are unresolved issues of material fact, we reverse.
Wentzell died December 8, 1970. The Administrator brought this action in August of 1972 to recover on a $55,000 promissory note payable to Wentzell and executed by the Felixes on February 22, 1966. This note consolidated several earlier notes, and was payable in installments, the first being due on May 1, 1967, the second on October 1, 1967, and the rest semiannually thereafter, with the final payment being due on or before October 1, 1971. Execution of the note was admitted by the Felixes, but they claimed payment and, on payment, return and surrender of the note by Wentzell to the Felixes.
At the hearing on the Felixes' oral motion for summary judgment, the following facts were established by evidence: Wentzell's lawyer, Rifkin, held for safekeeping eight notes from the Felixes payable to Wentzell. In early 1966, another lawyer, Bartlett, drafted a $55,000 note consolidating the earlier notes, and delivered an original and carbon copy to Wentzell with instructions for the Felixes to sign as makers on the lower lines and for Wentzell to sign his own name on the top line as payee, and to retain the original and give Felix the copy.
In March 1966, Wentzell returned to Rifkin's office with the carbon copy of the note as prepared by Bartlett. This copy bore the original inked signatures of Wentzell and the Felixes. Wentzell requested that the note be put with the other notes retained for him. Rifkin put it in the same envelope with the earlier notes and placed them in his safety deposit box. He asked why this was a signed carbon copy rather than the signed original, and Wentzell replied that that was the way Lad Felix wanted it handled.
After Wentzell's death in 1970, Rifkin turned over the signed carbon copy of this note, and the earlier notes, to the Administrator. The attorney for the estate photocopied these documents and then put the original in the vault of the public administrator for safekeeping. In December 1971, this vault was burglarized and these documents were apparently taken and have not been found since. The photocopies were offered and received into evidence.
Felix produced and had admitted into evidence the signed original of the note. He stated that it had been in his possession since Wentzell's death. There was no statement made that he had paid the note, and no explanation was given as to how he happened to have it.
On this evidence, the trial court found that only one original note existed, and that, since that note was in the possession of the defendants, they were entitled to summary judgment. We disagree.
If, after a note has once been negotiated, has matured, and is in the possession of a person liable for its payment, a rebuttable presumption of payment or discharge by such obligor arises. Shammas v. Boyett, 114 Cal.App.2d 139, 249 P.2d 880; 12 Am.Jur.2d Bills & Notes s 1218. However, that presumption arises only where there is a showing that possession was acquired after maturity. Peltier v. McFerson, 67 Colo. 505, 186 P. 524. And, further, the presumption does not arise if possession may be satisfactorily accounted for upon any reasonable theory other than that of payment. 11 C.J.S. Bills & Notes s 662(d)(1). The above principles apply both under the Negotiable Instruments Law, C.R.S.1963, 95--1--119(f), which is applicable here, and the Uniform Commercial Code, which was not in effect at the time of this note transaction, s 4--10--101, C.R.S.1973 (1965 Perm.Supp., C.R.S.1963, 155--10--101). See Comments after ss 4--3--601 and 4--3--605, C.R.S.1973 (1965 Perm.Supp., C.R.S.1963, 155--3--601 and 155-3--605), and 2 Bender's Uniform Commercial Code Service s 12:18(6).
In the instant case, nothing on the signed original note showed cancellation, endorsement of payment, or satisfaction. The Felixes offered no explanation of when, where, or how payment was made, and no evidence was produced to show that this note was ever in the hands of the payee. Hence, no presumption of payment arose in defendants' favor.
On a motion for summary judgment, any doubts as to the existence of an issue of material fact must be resolved against the moving party. Abrahamsen v. Mountain States Telephone & Telegraph Co., 177 Colo. 422, 494 P.2d 1287. And, where the evidence supports conflicting inferences, these must be resolved favorably to the party against whom the motion is made. O'Herron v. State Farm Mutual Auto Insurance Co., 156 Colo. 164, 397 P.2d 227.
So viewing the evidence presented here, the inferences to be drawn are that both the original and the carbon copy of the note were signed in ink by Wentzell and the Felixes, and Wentzell kept the signed carbon and Felix the signed original. Both were 'originals' since they bore original signatures. The Felixes had possession from the time of making and prior to maturity. Such a set of circumstances would be consistent with non-payment as alleged by plaintiff.
Thus, the evidence presented did not establish, as a matter of law, that there had been payment of the note and no presumption existed in defendants' favor on this issue. Hence, a material issue of fact was present and entry of summary judgment was improper.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
SILVERSTEIN, C.J., and COYTE, J., concur.