Nelson v. Flint

On June 3, 1892, the defendant in error commenced suit in the district court of the Fourth judicial district of the territory of Utah for the county of Weber upon a promissory note, of which the following is a copy:

'$6,700. Salt Lake City, Utah, April 3, 1891.

'On or before the 23rd day of April, 1892, without grace, for value received, we, or either of us, promise to pay to the order of Richard Flint sixty-seven hundred dollars, negotiable and payable at Ogden, Utah, without defalcation or discount, with interest at the rate of ten per cent. per annum from date until paid, both before and after judgment.

'Interest payable semiannually.

'Alfred H. Nelson.

'Frank J. Cannon.

'A. H. Cannon.'

The original answer denied that plaintiff was the owner or holder of the note, and alleged generally that it was made without consideration, and that plaintiff wrongfully obtained possession thereof. Subsequently an amendment was filed which stated that the plaintiff had been since about June 19, 1889, the holder and owner of two promissory notes signed by the defendants Nelson and Frank J. Cannon, amounting to $6,700; that he offered to surrender those notes and waive all claim for interest if the makers of those notes would furnish him a new note signed by them and their co-defendant in this case, A. H. Cannon; that in reliance upon such agreement the note sued upon was signed, and the plaintiff obtained possession of it upon a promise to return the old notes, which he had failed to do. This amended answer was met by, in substance, a general denial. Upon a trial before the court and a jury a verdict and judgment were returned and entered in favor of the plaintiff for the full amount of the note and interest. This judgment was thereafter affirmed by the supreme court of the territory, to reverse which latter judgment of affirmance a writ of error was sued out from this court.

A. R. Heywood, for plaintiffs in error.

Pliny B. Smith, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.