No. 12528 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

CREDIT COUNSELLORS, INC., 

a Corporation, 

Plaintiff and Respondent, 

-vs - 

JAMES W. PARK & WILLIAM R. WEST, 

Defendants and Appellants. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Truman G. Bradford, Judge presiding. 

Counsel of Record: 

For Appellants : 

Church, Harris, Johnson and Williams, Great Falls, 

Montana 

Cresap S. McCracken argued, Great Falls, Montana 

For Respondent : 

Stephen Swanberg argued, Great Falls, Montana 

Filed : OCT 2 5 1973 

Submitted : September 24, 1973 

Decided : 0~12 5 1973 
Honorable M. James Sorte, District Judge, sitting in place of 

Mr. Justice John C. Harrison, delivered the Opinion of the Court. 

Plaintiff (respondent) Credit Counsellors Inc. recovered 

judgment on a note in the district court of the eighth judicial 

district, Cascade County, and defendants (appellants) appealed. 

Elsie C. Nelson, the widow of Sig T. Nelson, testified 

that the promissory note that is the subject of this action was 

given by defendants West and Park to Sig T. Nelson as part payment for the liquor and beer license of the old Great Falls Hotel. 

Elsie C. Nelson, as executrix of the Estate of Sig T. Nelson, 

assigned the note to plaintiff, Credit Counsellors Inc. Plaintiff sued on the note and defendants answered by: (1) Denying 

that the complaint stated a claim upon which relief could be 

granted; (2) Alleging that payment of the note was contingent 

upon defendants' continued operation of a retail liquor business; 

(3) Alleging the note was given without consideration; and (4) 

Generally denying the allegations of the complaint. 

Defendants allege error because of improper foundation 

for admission in evidence of the following numbered exhibits: 

1. Note signed by defendants; 

5. Dunning letter from plaintiff to defendant West 

and his reply written on the back of the letter 

acknowledging the debt. 

6. Letter from defendant West to plaintiff acknowledging the debt. 

Defendants argue there was no proper foundation for admission of the exhibits in evidence and therefore a failure of 

proof of execution, delivery and consideration for the note. 

The execution of the note is admitted by defendants' 

answer to the complaint "That payment of said Promissory Note 

was contingent upon Defendants' continued operation of a retail 

liquor business * * *." There was, therefore, sufficient foundation 
to admit the note (exhibit 1) in evidence. 

The debt underlying the note was admitted by defendant 

West, a joint debtor, by his written reply on the dunning letter 

from plaintiff (exhibit 5), his letter to plaintiff (exhibit 6), 

and in a phone conversation with Elsie C. Nelson. Section 93- 

401-27(5), R.C.M. 1947, provides that the act or declaration of 

a joint debtor may be given in evidence. 

The possession of the note by plaintiff, considered with 

exhibits 5, 6 and the matters above are adequate proof of delivery 

of the note. 

After proof of execution and delivery of the note, consideration is presumed (section 93-1301-7(21), R.C.M. 1947). 

If defendants could have defended on the grounds of 

failure of consideration they should have rebutted the presumption of consideration with their own testimony. 

Because defendants did not testify,the prima facie case 

of plaintiff resulted in judgment. 

The judgment is affirmed. 

Hon. M. '~ikes Sorte, sitting in 

place of Mr. Justice John Conway 

Harrison