163 Ark. 170 | Ark. | 1924
(after stating the facts). The established rule in this State is that, where both parties request a peremptory instruction and do nothing more, they thereby assume the facts to be undisputed and, in effect, submit to the trial court the determination of the inference proper'to be drawn from them.
The circuit court’s decision, as evidenced by its instruction to the jury, that it render a verdict for the defendant, was a finding of fact, which concluded both parties .as effectually as if the same fact had been 'found by the jury. St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71; St. L. I. M. & S. R. Co. v. Ingram, 118 Ark. 377; Watkins v. Louisiana State Life Ins. Co., 151 Ark. 596; and National Benevolent Society v. Barker, 155 Ark. 506. Therefore the finding of fact by the trial court must stand if the record discloses substantial evidence to support it.
It is true that the note, by its terms, is payable in money, and this recital cannot be contradicted by parol evidence. It is equally well settled, however, that the holder of a promissory note may agree with the maker for a means or method of discharging the obligation in a manner different from that set out in the note, and, when such agreement, made between the parties, is shown to have been fully executed, it presents a good defense to an action on the note while it is in the hands of the parties, or their assignees with notice. Certain v. Smith (Ind.), 101 N. E. 319; Nolle v. Gates, 20 Tex. 315; Noble v. Edes, 51 Me. 34; and Cary v. Bancroft (Mass.), 14 Pick. 315, 25 Am. Dec. 393.
In the last mentioned'case the court said that an agreement between the maker and the payee of a note, that it shall be set-off against a note due the maker from the payee, so far as the smaller will pay the larger, is executory, and does not, pro tanto, extinguish either note. The reason is that it is like an agreement not to sue, executory -and collateral, not affecting the terms of the note until executed. Such agreement, however, does operate as a payment, under these authorities, when it has been executed.
It results from the principles of law decided in these cases that the agreement testified to by Wooten was in all respects a perfectly legitimate transaction, and, when carried into execution, the payments by Wooten to the Southern Trust Company for Vinson extinguished the debt he owed to Wooten.
It Avill be remembered that Wooten testified that he paid to the Southern Trust Company for Vinson $42.20 more than the total amount, principal and interest, due by him on the note he had given to Baldy Vinson in settlement of their partnership affairs. Wooten also testified that he did not owe Vinson any other amount of money, and did not owe Mrs. Baldy Vinson 'anything, except that he executed the note sued on to her, at the request of J. R. Vinson, as a substitution or a renewal of a note for a similar amount which he had given to Baldy Vinson for the amount due him in settlement of their partnership affairs.
The testimony of Wooten in this respect was competent. It did not in any wise tend to vary or contradict the terms of the note itself. His testimony only explained the transaction, and showed the circumstances under which the note was given. It is always competent to show the consideration or lack of consideration of a note by oral testimony.
But it is insisted that there is no competent testimony tending to show that J. R. Vinson acted for Mrs. Baldy Vinson in taking the note payable to her in lieu of the note which he had executed to Baldy Vinson. The fact of his agency in the matter is fairly inferable. Wooten testified fully as to the circumstances which caused him to execute the note. J. R. Vinson was a brother of Baldy Vinson, and also the president of the Southern Trust Company. The fact.that Mrs. Vinson received the note from him, and demanded payment from Wooten, shows at least that she ratified his agency in the premises. If she did not ratify the act of J. R. Vinson in taking this note in renewal or substitution of the note given by Wooten to Baldy Vinson, then the note sued on is without consideration, and that fact alone would be sufficient to defeat a recovery herein by the ' plaintiff.
The result of our views is that the judgment of the circuit court was correct, and should be affirmed.