L.R. Baird v. C.G. Fuerst

This action is brought by the plaintiff Baird, as receiver of the First State Bank of Stanton, North Dakota, to recover on a promissory note. The defense is payment and discharge. The case was tried to the court without a jury. Judgment was ordered for the plaintiff. Defendant moved for a new trial on the ground of the insufficiency of the evidence to sustain the judgment. The motion was denied. This appeal is from the judgment and from the order denying a new trial. The sole question is as to whether the evidence is sufficient to sustain the judgment. The defendant Fuerst executed and delivered to E. M. Serr his promissory note for $1,500, dated January 23, 1922, due January 23, 1923, with interest at the rate of 10 per cent per annum. It was an accommodation note, but complete and regular upon its face. Serr negotiated the note and ultimately on January 9, 1923, the First State Bank of Stanton purchased it in good faith for value and without notice. Serr was indebted in a large amount to the Stanton Bank. He had some real estate. On January 2, 1923, he gave the bank a contract for deed to this real estate, subject to encumbrances, as security for his indebtedness. Defendant's note above described fell due on January 23rd. It was not paid. On March 2nd defendant and Serr went to the bank and defendant executed a new note, dated January 23, 1923, for $1,650, being the amount of the former note with interest to the due date. This new note also was made payable to Serr. Serr indorsed it and turned it over to the bank. The present action is brought to recover on it. The bank surrendered the old note to Serr. As a part of this transaction the following writing, known in the record as Exhibit 1, was executed by the bank and Serr and delivered to the defendant: