Cunningham

On December 24, 1958, plaintiff corporation sued defendants Cunningham and Healy on a $25,000 promissory note due December 4, 1958, executed by them on September 5, 1958. The complaint alleged that the note was given in consideration of a dismissal with prejudice of a suit for $100,000 brought by plaintiff against defendants, then pend ing in the United States District Court entitled “Albermont Petroleums, Limited, a corporation, vs. Lee Healy and C. D. Cunningham. ’ ’ The answer filed January 28, 1959, denied all allegations of the complaint including the execution of the note, but admitted “that there were negotiations and an agreement was reached between the parties on or about that date (September 5, 1958).’’ (Par. II.)

A second note for $25,000, executed by defendants at the same time under the same circumstances and in accord with an oral stipulation of dismissal of the federal action by plaintiff with prejudice, having become due March 5, plaintiff on April 13, 1959, filed a supplemental complaint to which an answer was filed April 21, 1959, in almost the same language of defendants’ first pleading.

Interrogatories were answered by defendant Cunningham on July 13, 1959,…