Windhorst v. BrandtWindhorst v. Brandt
The action below was on a promissory note, executed by William Windhorst, in his lifetime, to defendant in error, Jacob Brandt. Suit was brought by Brandt against the estate of Windhorst, and he recovered a. judgment in the court of common pleas for the full amount of the note.
The defense in the answer admitted the execution and delivery of the note* but denied that there was any considеration sufficient to support the note. The case was tried 'to the court without the intervention of a jury. -
The only error complained of' is that the judg ment is against the weight of the evidence. The
It appears,that some time prior to the date of the nоte, the William Windhorst Company became financially embarrassed, and a receiver was appointed to take charge of the business аnd assets of the company. During the receivership, it appears that William Windhorst, who owned practically all of the stock of the comрany, arranged with the Western Bank & Trust Company to furnish the money to buy up the claims of the creditors against the company, thereby making it possible to lift thе receivership.
The bank, without difficulty it seems, purchased all the claims of the creditors, except the claim of Brandt & Lear, a partnership, and took an assignment to the bank of their respective claims. It aрpears that Brandt objected to assigning his claim to the bank for forty per cent, of the amount. He and Windhorst had been strong personal friends for many years, and it appears that Windhorst made an arrangement with or promise to Brandt that if the partnership would assign its claim to the bank, accepting forty cents on the dollar, he, Windhorst, would personally take care of Brandt’s personal loss in the account. Thereupon, the acсount of Brandt & Lear was assigned to the bank, and forty cents on the dollar wаs paid. Later, Windhorst, pursuant to his promise, executed the note in suit, covering the personal loss of Brandt.
It is urged by plaintiff in error that this settlement was a composition among the creditors, and that the act of giving Brandt the nоte was giving
The dеfendant in error claims that there was no composition agreement with creditors; that there was no meeting of the creditors, and no agreеment among them by which all agreed to the receipt of forty cents оn the dpllar in payment in full of their claims; that the' bank purchased with its own money the claims and took an assignment on that basis; and that the transaction wаs with each individual creditor who was willing to accept forty cents on the dollar for his claim.
If the plaintiff in error’s claim of a composition is proven, defendant .in error fails in his case. (J. T. Way & Co. v. S. T. & R. Langley,
There is but one .witness in the case, the receiver of the William Windhorst Company. After the bank purchased the claims, the receivership was liftеd and the company continued in business, the company settling with the bank for thе claims which it had purchased.
The trial court found on the evidence thаt there was no composition agreement among creditors, that thеre was no secret advantage given one creditor over othеr creditors to a composition' agreement, and we are of opinion that the evidence supports this conclusion.
Judgment affirmed.