STATEMENT OF FACTS
This appeal is prosecuted by the administrator of the estate of W. P. Winfrey, deceased, from a judgment allowing a claim against the estate.
On the 21st day of April, 1928, the appellee, C. H. Moss, presented a claim against the estate of W. P. Winfrey upon a note made to the Bank of Dyer, dated June 30, 1922, and payable on demand. The administrator refused to allow the claim, and it was presented to the probate court for allowance, and the judgment was in favor of appellant against the validity of the claim. Upon appeal to the circuit court and trial to a jury judgment was rendered on its verdict in favor of appellee in the sum of the claim presented. The administrator defended on the ground that the note was a forgery, that the appellee Moss was not a holder in due course and an innocent purchaser thereof, and that, if the note was executed by the deceased, it was a demand note to the Bank of Dyer, of which the appellee Moss was president, which bank was succeeded by the Farmers' State Bank, of which appellee was also president; that the last named bank had failed and gone into the hands of the bank commissioner for liquidation, at which time the decedent Winfrey had on deposit in the bank a checking account of about $900 and also had and had held for several years a certificate of time deposit in said bank in the sum of $1,000, and that as such depositor and creditor of the bank his estate was entitled to a setoff of a portion of said amount against the note, even if it was valid.
The note with the regular affidavit of appellee Moss, as presented to the administrator of Winfrey's estate and disallowed, was read in evidence. There was no affidavit denying the genuineness of the signature of decedent to the note. It appears from the testimony that the note, payable on demand, was made by the decedent Winfrey to the Bank of Dyer and thereafter purchased on March 12, 1923, from the cashier of the bank by appellee Moss, who was its president, the full amount *Page 527 thereof being paid by him, and that it was transferred and delivered to Moss and put in his private box; the cashier later notifying the maker that the note had been sold to Moss. Winfrey at the time had a certificate of time deposit of $1,000 in the bank upon the failure of which its assets were taken over by the Farmers' State Bank, of which appellee also became president. Winfrey filed a claim against the Bank of Dyer for $980.36," the balance due on certificate of deposit No. 215," and was paid dividends out of the assets of the bank on the claim amounting to about 53 per cent. of it. No other claim was filed by W. P. Winfrey or his estate against the bank, according to the testimony of the liquidating agent, who also said Winfrey's checking account showed an overdraft of $81.64. The Farmers' State Bank was taken over by the bank commissioner for liquidation on December 26, 1925, with Dickerson, Deputy Bank Commissioner, in charge, who was succeeded by J. S. Holt, an attorney of Fort Smith, as liquidating agent. The claim of Winfrey against the bank was filled out with different colored inks, the body of it in blue or black ink and the balance due on certificate of deposit in red ink. Winfrey was a stockholder in the bank and paid his assessments.
Several witnesses testified that they were familiar with decedent's handwriting and that the signature on the note was not genuine. Other witnesses, experts, stated that it was genuine and the cashier of the bank so testified, and also that he saw Mr. Winfrey sign the note.
Appellee testified that he purchased the note from the Bank of Dyer on the date the transfer shows, paying the whole amount due on it, and that no payments had been made thereon, except the one for $200 credited thereon on March 19, 1926. The note was indorsed, "Pay to C. H. Moss, Bank of Dyer, by Ervin C. Morse, Cashier, 3-12-1923," and was credited by the cashier with a payment in the amount of $200, 3-19-1926. (after stating the facts). Appellant insists for reversal that the court erred in giving certain instructions, especially instruction No. 1, leaving out of the jury's consideration his contention that the note was owned by the Bank of Dyer. at the time of its failure, and the estate was therefore entitled to a setoff against it of any amount due from the bank to the maker of the note.
The undisputed testimony shows, however, that the note was purchased and paid for by appellee Moss, and duly transferred by the bank to him by its cashier on the date indorsed on the transfer, and also it was shown, and the jury could well have found from the testimony, virtually undisputed, that W. P. Winfrey made a claim for the amount of his certificate of indebtedness against the Bank of Dyer after its failure and was paid in dividends 53 per cent. of the amount of his claim. The direct testimony also disclosed that the note upon which the claim was based was never transferred to nor listed among the assets of the Farmers' State Bank, successor to the Bank of Dyer. There was no testimony therefore warranting the submission of the question to the jury, and no error was committed in the giving of said instruction No. 1, properly defining the issues. The instructions as a whole submitted the issues fairly to the jury, and its verdict was amply sustained by the evidence.
As already said, the undisputed testimony showed that the note was transferred on the date indorsed there on for a full consideration paid by him to appellee Moss, and that no payments had ever been made on it by the maker except the one for $200 indorsed thereon. Even if the note had been transferred after it was due, which was not the case, or an unreasonable time after its date as a demand note, it would in no wise have relieved the maker from its payment. See Moss v. Chitwood, 180 Ark. 600,22 S.W.2d 398.
The note was properly read in evidence, there being no affidavit filed denying the genuineness of the signature *Page 529 thereto, and was prima facie evidence of its execution. Section 4114, C. M. Digest; Heathcock v. Brooke,169 Ark. 73, 272 S.W. 843.
A careful examination of the whole record discloses it free from prejudicial error, and the judgment is affirmed.