Strassheim v. McGuire ( 1917 )

Bruce, Ch. J.

(after stating the facts as above). Tbe plaintiff contends that the facts referred to in the findings took place prior to tbe giving of the note, and that, if such facts did occur, the settlement by note constituted a final settlement between tbe parties. He also contends that tbe note imports a consideration, and that the testimony of the defendant in support of his defense tends to vary its terms.

There is, of course, no merit in tbe contention that tbe note imports a consideration, and that tbe evidence of tbe defendant tends to vary its terms. Tbe evidence tends to sbow that, if there was any assignment, tbe assignee was cognizant of tbe conditions surrounding tbe note, and tbe presumption of consideration goes no further than to establish a prima facie case. When one seeks to prove a parol agreement that services may be offset against a note, and that a note was merely given as a memorandum, be is not varying its terms. There is no pretense in the case at bar that the note did not represent moneys advanced to the defendant. The contention is merely that it was taken as a memorandum, and that the plaintiff was owing to the defendant moneys which could be offset against the note when the settlement came to be made, or if the payment of the note was sought to be enforced. Tbe question is merely whether tbe note was given in final settlement.

Although, too, we agree with counsel for appellant that the evidence is extremely unsatisfactory as to tbe guaranty of $10 a week for services, and whether tbe note was given in complete settlement of tbe transaction between tbe defendant and Strassheim & Company and tbe defendant and Iienry E. Strassheim, and on tbe contention of tbe defendant that tbe two $25 and tbe $10 payments made by him were intended to apply on a personal indebtedness to Iienry E. Strassheim, and that tbe letters written by him were in relation to this personal indebtedness and not to his account with tbe firm, we still cannot bold that there is not substantial evidence in tbe record in tbe support of tbe findings of tbe trial judge. Sucb being the case, and tbe trial judge having bad tbe opportunity of seeing tbe witness face to face, we do not feel justified in interfering with bis findings and judgment.

Tbe judgment of tbe County Court is affirmed.