Opinion
Nov. 26, 1974
Editorial Note:
This case has been marked 'not for publication' by the court.
Seavy, Jensen & Dreger, Alan N. Jensen, Pueblo, for plaintiff-appellee.
William E. Kenworthy, Denver, for defendant-appellant.
COYTE, Judge.
This case was previously before us in Pueblo Bank & Trust Co. v. McMartin, 31 Colo.App. 546, 506 P.2d 759. We reversed and remanded for a new trial. On retrial, judgment was entered in favor of the bank against McMartin on a $13,000 note. McMartin appeals contending that he was an accommodation maker on the note and that the note had been renewed or extended without his consent and that he is thus not liable. We affirm.
The facts of this case are fully set forth in the opinion in the first case. At the conclusion of the evidence in the retrial, the case was submitted to the jury under proper instructions, and the only issue before us is whether there is evidence to support the jury verdict.
Defendant admits signing the note as an accommodation maker and is liable on the note unless he can prevail in his affirmative defense. C.R.S.1963, 155--3--307. The evidence is in conflict as to whether the note was extended. About the time the note became due, the principal on the note told the president of the bank that litigation would hold up the completion of a project, the funds of which had been assigned to the bank. The bank president replied, 'We'll just have to go along with you.' After the note was past due, it was not shown on the delinquent list of notes owned by the bank for two months. When the note was due, the bank sent a consolidated note to the principal to sign and, after some delay, the note was signed and returned to the bank. Defendant refused to sign the new consolidated note or a guaranty for the new note.
The jury was instructed in part as follows:
'Therefore, if you find that Pueblo Bank and Trust Company made any express or implied agreement with McMartin Plumbing and Heating Company to extend the time of payment for any length of time upon either or both of the notes dated February 10, 1967, or that it accepted renewal notes for either or both notes, without obtaining the consent or signature of E. D. McMartin, then such action on the part of the Bank would discharge the liability of E. D. McMartin as to that note, and your judgment should be for defendant E. D. McMartin.'
The verdict of the jury in favor of the bank is an implied finding, under this instruction, that there had been no express or implied agreement to extend the note in question.
Where there is sufficient competent evidence in the record to support a jury's findings and the jury has been correctly instructed by the trial court, the jury's findings are binding upon appellate courts. Vigil v. Pine, Jr., 176 Colo. 384, 490 P.2d 934. Here, there was no direct testimony that the note had been extended or that a new note had been accepted in lieu of the original note. This court cannot judge the weight to be given to evidence or the credibility of witnesses. The fact that we might resolve issues of fact differently than did the jury will not justify reversal of a verdict supported by competent evidence. Seifried v. Mosher, 129 Colo. 156, 268 P.2d 411.
Judgment affirmed.
BERMAN and KELLY, JJ., concur.