Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES v. WIMBLEY

November 10, 1954

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JAMES WIMBLEY AND MYRTLE WIMBLEY, DEFENDANTS.



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 course.

Defendants on March 4, 1954, filed their answer, admitting the execution of the note but alleging fraud on the part of the payee, S.L. Kay, d/b/a Arkansas Home Building & Repairing Company, in procuring the execution of the note. Defendants further alleged that Allied Building Credits, Inc., to whom Kay negotiated the note, had either actual or constructive notice of the fraud and was not a holder in due course; that plaintiff had no better title than Allied and likewise was not a holder in due course.

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 admissions.

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, separately stated.

Findings of Fact.

1.

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.

2.

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.

3.

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.