It is contended by demurrers to the answer that the note which the plaintiffs originally gave the bank to cover their indebtedness is contradictory because the body recites that the total amount, composed of both principal and interest, is due October 1, 1960, while the entry on the top margin which recites the total interest discounted on the left side, with the statement “To pay $2,000 on or before March 24, 1960” on the right side is an ineffectual attempt to vary the terms of the instrument by a marginal notation. Prior to the Negotiable Instrument Law it was established that, as between the parties to the instrument, their mutual intent or the intent of one known to the other would prevail, and a memorandum on a note which was a part of the original contract and which rendered the date of payment ambiguous might be explained by parol evidence.
McCalla v. McCalla,
The allegаtions in the answer setting out the bankruptcy proceedings voluntarily filed by the plaintiffs are relevant on the issue of damages, it being contended by the defendant that if the plaintiffs’ business was destroyed this flowed from their voluntary act in filing the bankruptcy petition due to their insolvency and not from insolvency caused by the defendant in initiating the foreclosure.
An allegation that something is known by the opposite party is not a conclusion of the pleader unless contradicted by other facts which make it appear that such knowledge did not exist.
Ethridge Motors, Inc. v. Haynie,
Certain general demurrers to the plea in bar were urged on the ground that either the cause of action set out in the petition was a personal one which did not vest in the trustee in bankruptcy, or, if it did vest in the trustee it thereafter reverted to the plaintiffs because it was abandoned by the trustee. Considering only the latter argument without venturing into the questions opened up by the former, it is necessary to decide whether this claim was before the trustee and whether it was in fact adjudicated. The bankrupts scheduled their debt to the bank evidenced by the note and security instrumеnt. They did not schedule any claim against the bank. However, this case is not like Larcon Co. v. Wallingsford, 136 FSupp. 602, or In the Matter of Tele King Corp., 136 FSupp. 731, where a defense to the note sued on (payment) or a compulsоry counterclaim (failure to use ordinary care to prevent the loss which was the subject of the claim) were urged respectively. The claims attempted to be prosecuted in those cases after' the disсharge in bankruptcy involved matters which would have reduced the amount of the indebtedness represented by the notes which were scheduled as valid claims in the bankruptcy action. The cause of action here is nоt a defense or setoff against the note which would reduce the amount of the scheduled indebtedness. It is a tort action seeking damages because of an alleged illegal attempt to foreclose on the plaintiffs’ property which damaged their business standing. Whether or not the plaintiffs owed the defendant the amount of the note has nothing to do with the tort they say was committed on them. The right of action, as set out in
In these cases, Ira Watson, apparently acting both for himself individually and for the Sale City corporation of which he was president, wrote a letter in which he contended that the instrument he signed was not an installment note, that when he signed it there was no provision for an installment payment made, that no payment was due at the time the foreclosure proceedings were initiated and he was so informed by its president, and that he wаnted the trustee’s consideration so that he might recover some of the damage which had been done to him. The letter was immediately forwarded by the referee to the trustee with the request that the latter relay his oрinion and that of his attorneys. The trustee reported that his examination satisfied him that the claim of the bank was valid in every respect. He mentioned specifically that the interest charged showed that a $2,000 payment wаs intended to be made in March, seven months before the balance of the note became due. He furnished a signed statement from Watson’s brother-in-law, who had been present at preliminary discussions and who stated he knew that Watson had agreed to pay $2,000 in the spring. The *732 trustee further stated that his own father was present when the statements were made, and had helped him in the investigation of the matter. All were of the opinion that “Mr. Watson knew thе amount of the note, knew the amount of interest, and agreed to make the $2,000 payment on or before March 24, 1960.”
Thus, the referee and trustee were on notice as to the claim of these plaintiffs. Nothing further was done in the matter and no further order was taken. The net result was not an adjudication but an abandonment. The trustee may not, simply by failing to pursue an asset in the belief that it is valueless, deprive the bankrupt of whatever value it may have, and the bankrupt who has in fact furnished the trustee with such information as he has regarding the asset is not estopped to claim it after abandonment simply because it was not listed on the schedule. See Herring-Curtiss Co. v. Curtiss,
The demurrer rulings in this case (
The motions for summary judgment were sufficient to raise the question of whether there were genuinely controverted issues of fact to be decided in the case. From the foregoing it appears that such issues exist. The defendant denied that the attempt at foreclosure was рremature and denied that the plaintiffs sustained damages from its initiation. An issue of fact remains as to when the wording regarding the $2,000 note was placed on that instrument and what the intent of the parties was as to its effect. It follows that the grant of the motions for summary judgment was error.
The trial court erred in overruling the general demurrer to the plea in bar of the defendant, in overruling the demurrer to paragraph 13 of the first count of the answer, and in granting the defendant’s motion for summary judgment.
Judgments reversed.