The opinion of the court was delivered by: John E. Miller, District Judge.
On January 20, 1954, plaintiff filed its complaint against
defendants seeking to recover the balance due on a promissory
note allegedly executed by defendants and then in the hands of
plaintiff, who had purchased the note from a holder in due
Plaintiff on June 24, 1954, filed a request for admissions,
attaching thereto the promissory note sued upon, together with
the F.H.A. Title I Completion Certificate purportedly executed by
defendants. On July 6, 1954, defendants replied to the request
for admissions, admitting the execution of the note and
completion certificate but alleging that they did not receive the
full consideration therefor.
On July 20, 1954, plaintiff propounded certain interrogatories
to defendants. On August 5, 1954, defendants, through their
attorney, requested additional time in which to answer the
interrogatories (because of the illness of the defendant, Myrtle
Wimbley). This time was granted, and on August 23, 1954,
defendants filed their answer to the interrogatories.
On September 20, 1954, defendants filed separate motions to
amend their answer and their reply to plaintiff's request for
admissions, and included therein the proposed amendments. The
substance of the amendments was that defendants still admitted
signing the completion certificate, but asserted that they did
not execute or sign the note sued upon. On September 21, 1954,
the Court entered separate orders permitting defendants to amend
their answer and their reply to plaintiff's request for
Upon the issues thus joined, the case was tried to the Court,
without a jury, on October 28, 1954, and at the conclusion of the
trial the Court, having considered the pleadings, ore tenus
testimony of witnesses, the deposition of Ed R. Livoni, exhibits,
request for admissions and interrogatories together with
responses thereto, and contentions of the attorneys for the
respective parties, orally announced its findings of fact and
conclusions of law, and in accordance therewith now makes and
files herein its formal findings of fact and conclusions of law,
The plaintiff is the United States of America. The defendants
are citizens and residents of the El Dorado Division of the
Western District of Arkansas.
In October, 1951, V.O. Nichols, a salesman working for S.L.
Kay, d/b/a Arkansas Home Building & Repairing Company, went to
defendants' home and persuaded them to have certain repairs made
on the home. On October 29, 1951, a written contract was entered
into between defendants and V.O. Nichols, purportedly acting as
the agent of Crossett Paint & Roofing Company, the said contract
providing that certain work should be performed on defendants'
home for a consideration of $880.
The plaintiff introduced in evidence the following documents
which were purportedly signed by the defendants:
The promissory note sued upon; F.H.A. Title I Completion
Certificate; F.H.A. Title I Credit Application; the written
contract between defendants and the Crossett Paint & Roofing
Company; and the F.H.A. Title I Cash Down Payment Certificate.
In addition plaintiff introduced handwriting specimens of both
defendants made during the trial.
From a study of these exhibits it is clear to the Court that
the defendants did not sign the note in question, and that the
signatures thereon were ...