Olsen v. Chappell

433 P.2d 1011, 20 Utah 2d 115, 1967 Utah LEXIS 536

• Court: Utah Supreme Court
• Decided: November 17, 1967
• Docket: No. 10822
• Status: Published

Opinions

CALLISTER, Justice:

Plaintiff, assignee of a promissory note, brought suit against the defendant, a comaker. The defendant admitted the execution of the note and its default, but contended that the payee had, by words and conduct, released him from any obligation to pay the note. The jury, in answer to special interrogatories, found in favor of the defendant. However, the court granted plaintiff a judgment notwithstanding the verdict and defendant appeals.

A recital of the facts are unnecessary except to point out that there was no written instrument of release, no consideration, and the note was never delivered to the defendant or his comaker. Under these circumstances, the plaintiff was entitled to a judgment as a matter of statutory law.

Section 44-1-121, Ú.C.A.,¹ provides:

A negotiable instrument is discharged:

(4) By any other act which will discharge a simple contract for the payment of money.

Section 44-1-124, U.C.A.1953,² provides:

The holder may expressly renounce his rights against any party to an instrument before, at or after its maturity. An absolute and unconditional renunciation of his rights against the principal made at or after maturity of the instrument discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon.

Subsection (4) of 44-1-121 is inapplicable under the facts of this case, because there was no consideration.³ Therefore, the case is governed by 44-1-124 which requires either an instrument in writing or the delivery of the note to the person primarily liable thereon (defendant).⁴

Affirmed. Costs to plaintiff.

CROCKETT, C. J., and TUCKETT, J., concur.

1 . Uniform Negotiable Instruments Act, § 119 (identical).

2 . Uniform Act, § 122 (substantially identical) .

3 . 65 A.L.R.2d 593, § 5, p. 601.

4 . The note in question was executed and in default prior to January 1, 1966, the effective date of the repeal of Secs. 44-1-121 and 44-1-124.