CREDIT COUNSELLORS v PARK
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No. 12528 I N THE SUPREME COURT O THE STATE O M N A A F F OTN 1973 CREDIT COUNSELLORS, I N C . , a Corporation, P l a i n t i f f and Respondent, -vs JAMES W. PARK & WILLIAM R. WEST, Defendants and A p p e l l a n t s . Appeal from: District C o u r t o f t h e E i g h t h J u d i c i a l D i s t r i c t , Honorable Truman G. B r a d f o r d , Judge p r e s i d i n g . Counsel of Record: For Appellants : Church, H a r r i s , Johnson and W i l l i a m s , G r e a t F a l l s , Montana Cresap S. McCracken a r g u e d , G r e a t F a l l s , Montana F o r Respondent : S t e p h e n Swanberg a r g u e d , G r e a t F a l l s , Montana Submitted : Decided : F i l e d :OCT 2 5 1973 September 24, 1973 0 ~ 1 521973 Honorable M. James Sorte, District Judge, sitting in place of Mr. Justice John C. Harrison, delivered the Opinion of the Court. Plaintiff (respondent) Credit Counsellors Inc. recovered judgment on a note in the district court of the eighth judicial district, Cascade County, and defendants (appellants) appealed. Elsie C. Nelson, the widow of Sig T. Nelson, testified that the promissory note that is the subject of this action was given by defendants West and Park to Sig T. Nelson as part payment for the liquor and beer license of the old Great Falls Hotel. Elsie C. Nelson, as executrix of the Estate of Sig T. Nelson, assigned the note to plaintiff, Credit Counsellors Inc. tiff sued on the note and defendants answered by: Plain- (1) Denying that the complaint stated a claim upon which relief could be granted; (2) Alleging that payment of the note was contingent upon defendants' continued operation of a retail liquor business; (3) Alleging the note was given without consideration; and (4) Generally denying the allegations of the complaint. Defendants allege error because of improper foundation for admission in evidence of the following numbered exhibits: 1 . Note signed by defendants; 5. Dunning letter from plaintiff to defendant West and his reply written on the back of the letter acknowledging the debt. 6. Letter from defendant West to plaintiff acknowledging the debt. Defendants argue there was no proper foundation for admission of the exhibits in evidence and therefore a failure of proof of execution, delivery and consideration for the note. The execution of the note is admitted by defendants' answer to the complaint "That payment of said Promissory Note was contingent upon Defendants' continued operation of a retail liquor business * * *." There was, therefore, sufficient foundation t o admit t h e n o t e ( e x h i b i t 1) i n e v i d e n c e . The d e b t u n d e r l y i n g t h e n o t e was a d m i t t e d by d e f e n d a n t West, a j o i n t d e b t o r , by h i s w r i t t e n r e p l y on t h e dunning l e t t e r from p l a i n t i f f ( e x h i b i t 5), h i s l e t t e r t o p l a i n t i f f and i n a phone c o n v e r s a t i o n w i t h E l s i e C . Nelson. 401-27(5), R.C.M. (exhibit 6 ) , S e c t i o n 93- 1947, p r o v i d e s t h a t t h e a c t o r d e c l a r a t i o n of a j o i n t d e b t o r may be g i v e n i n e v i d e n c e . The p o s s e s s i o n of t h e n o t e by p l a i n t i f f , c o n s i d e r e d w i t h e x h i b i t s 5 , 6 and t h e m a t t e r s above a r e a d e q u a t e proof of d e l i v e r y of t h e note. A f t e r proof of e x e c u t i o n and d e l i v e r y o f t h e n o t e , cons i d e r a t i o n i s presumed ( s e c t i o n 93-1301-7(21), R.C.M. 1947). I f d e f e n d a n t s c o u l d have defended on t h e grounds of f a i l u r e of c o n s i d e r a t i o n t h e y s h o u l d have r e b u t t e d t h e presumpt i o n of c o n s i d e r a t i o n w i t h t h e i r own t e s t i m o n y . Because d e f e n d a n t s d i d n o t t e s t i f y , t h e prima f a c i e c a s e of p l a i n t i f f r e s u l t e d i n judgment. The judgment i s a f f i r m e d . Hon. M . ' ~ i k e sS o r t e , s i t t i n g i n p l a c e of M r . J u s t i c e John Conway Harrison
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