200 N.W. 1007 | N.D. | 1924
At the trial evidence was offered by plaintiff to the effect that in February, 1923, plaintiff's cashier called defendant to the bank to inquire about the interest due and the delinquent payments; then it was ascertained that defendant had made an interest payment of $480.00 to Murback; then defendant demurred to giving a note for delinquent principal payments. In March, 1923, the $4000 mortgage became due. The holder thereof threatened to foreclose the mortgage. In order to extend this mortgage a waiver by defendants was signed which recited that whereas said Geisen was interested in the land by virtue of the contract, he and his wife, in consideration of the holder of the mortgage extending the time of payment from March 15, 1923 to March 15, 1928, consented to such extension and waived any right, title or interest they had in the premises in favor of such lien.
It is admitted by all the parties that this waiver was signed; but, in accordance with defendant's testimony, as well as that of his wife and a maid at their home, there was another paper signed in duplicate which released and surrendered to plaintiff bank all of defendant's right, title and interest in the contract for a deed and released defendant from any liability thereunder.
In this respect, defendant's testimony is to the effect that four different papers were signed by the parties at the time that the waiver was signed; the waiver in duplicate, and the release in duplicate; that the bank's cashier brought all the papers to them; that they signed the same, all within a paper cover held only by paper clips, and they were all *867 taken away. On the other hand, plaintiff's cashier testified to the effect that only one set of papers, namely, the waiver in duplicate, were signed by defendants; that there had been another waiver prepared by some foreign attorneys but they did not have it signed nor take it to defendants for signature. Testimony was also adduced by counsel for the plaintiff to the effect that a waiver only was dictated, typed and handed to the bank and that the same, so typed and delivered, was duly secured with eyelets in duplicate, each within a blue wrapper, and was not inclosed in a wrapper with any clips. The trial court found defendant was liable upon the contract for the delinquent payments and ordered judgment accordingly. In a memorandum decision the trial court stated that the burden of proof was upon defendant to establish this subsequent contract of release; that the evidence was insufficient so to do. Otherwise, the trial court indicated that defendants, in their testimony, must have been mistaken concerning the character of the paper or the additional paper that they claimed to have signed.
Defendant contends that the action is properly in equity; that the complaint is insufficient for the reason that plaintiff alleges that it is the owner of the premises and, therefore, it can not maintain this action; that the trial court in its findings, considered with its memorandum decision, erroneously placed the burden of proof upon defendant; that the trial court erred in certain rulings upon the evidence and, particularly, in admitting certain testimony concerning the preparation by an attorney of the waiver. Otherwise, defendant in its brief states that the case turns upon the question whether the contract of release, as pleaded by defendant and denied by plaintiff, was made, and in this respect maintains that the proof is overwhelming that such release was in fact made.
Accordingly, defendant is limited to the grounds of error presented in the motion for a new trial in the lower court. Ruble v. Jacobson, ante, 671,
The specifications of error concerning the rulings upon the admission of evidence are without merit. The trial court properly placed the burden upon defendant. See First State Bank v. Radke, ante, 246, 35 A.L.R. 1355,
The findings of the trial court are presumed to be correct unless clearly opposed to the preponderance of the evidence. Richards v. Northern P.R. Co.
We are satisfied that the record presents only a question of fact concerning the sufficiency of the evidence to justify the findings. Although there is a sharp conflict in the testimony with the numerical weight of the evidence predominating in defendants' favor, nevertheless, we are not prepared to hold that the presumption which applies concerning such findings by a trial court who has heard the evidence and seen the witnesses, has been overcome. The judgment and order are affirmed with costs.
CHRISTIANSON, NUESSLE, JOHNSON, and BIRDZELL, JJ., concur. *869