12345. Farmers & Merchants Bank (Hunter, ND)

Article Text

Cass County, Hon. A. T. Cole, judge. AFFIRMED. Opinion of the court by Nuessels, J. Lemke & Weaver, of Fargo, attorneys for Plaintiff and Appellant. Lawrence, Murphy & Niles, of Fargo, attorneys for Defendant and Respondent. From Cass County L. R. Baird, as Receiver of the Farmers & Merchants Bank of Hunter, North Dakota, Plaintiff and Respondent. vs. R. D. Goforth, Defendant and Appellant. SYLLABUS: 1. Where a negotiable instrument is no longer in the possession of the party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved. (Sec. 6901, C. L. 1913; N. I. L. Sec. 16.) And where the maker of a promissory note, which is in the possession of the payee named therein, claims that there was a conditional delivery of such note, the maker has the burden of establishing his defense of conditional delivery by a preponderance of the evidence. 2. On appeal from a judgment rendered in an action properly triable to a jury, but tried to the court without a jury, the findings of fact are presumed to be correct; and when such findings are based upon parol evidence, they will not be disturbed unless shown to be clearly opposed to the preponderance of the evidence. 3. In the instant case, the plaintiff seeks to recover upon a promissory note. The trial court held that certain defenses interposed by the defendant had not been established. For reasons stated in the opinion, it is held that the findings of the trial court have ample support in, and are not opposed to the preponderance of, the evidence. From a judgment of the District Court of Cass County, Hon. A. T. Cole, Judge, the defendant appeals. AFFIRMED. Opinion of the court by Christianson, Ch. J. Divet & Sgutt, Fargo, N. Dak., Attorneys for Appellant. O. S. Gunderson, Fargo, N. Dak., Attorney for Respondent. From Adams County J. O. Jacobson, Plaintiff and Appellant. vs. George Klamann, et al, Defendants. O. O. Brown, Defendant and Respondent. SYLLABUS: 1. Sufficiency of the evidence cannot be reviewed on appeal unless such sufficiency was challenged by motion for a directed verdict or by motion for a new trial in the Court below. 2. The pleadings in this case raised the issue of whether defendant Brown was an accommodation endorser for the plaintiff. The Court gave the law regarding accommodation parties, their rights and liabilities. The matter was submitted to a jury who