Ehrenreich

The plaintiff and appellant brought an action to recover the sum of $20,000 upon a written instrument dated May 22, 1959, signed by plaintiff.

This instrument, although informally worded, is in effect a nonnegotiable promissory note. The defendant admitted the execution and consideration of the note but denied that there was anything due thereon. The defense was based upon the contention that agreements entered into by the parties on May 26, 1959, constituted a novation and therefore all liability upon the note had been terminated. The court found this issue in favor of the defendant and respondent and denied recovery to the plaintiff. This appeal followed.

The main question confronting the court on this appeal is plaintiff’s contention that the evidence was insufficient to sustain the findings and judgment, it being contended further that the court mistakenly placed the burden of proof upon the plaintiff.

The evidence was in sharp and irreconcilable conflict. Ordinarily this court would be bound by the oft-repeated rule that where there is substantial evidence to support the judgment, the findings and judgment of the trial court are determinative.

It is true, however, that…