FDIC v. McCauleyCivil No. 880240

VandeWalle, Justice.

Charles McCauley appealed from a district court judgment finding him jointly and severally liable for a note held by FDIC which was signed by McCauley and Jerry Waitman. On appeal McCauley raises the following issues:

"l. Was the trial court's Eighth Finding of Fact that McCauley was aware or should have been aware through his negotiations with the Bank, that the Bank expected to hold McCauley and Waitman jointly and severally liable under the note in question, clearly erroneous?

"2. Did the renewal note that was the subject of this litigation properly express McCauley's intent and understanding at that time, and if it failed to express the real intention due to McCauley's mistaken belief, should the mistaken language ('jointly and severally') be disregarded and stricken from the instrument?

"3. Is there any basis for the trial Court's second and fourth Conclusions of Law that because of McCauley's failure to read the instrument in full, he is thereby barred from asserting the defense of 'mistake of fact'?

"4. Was the course of dealings between the parties in the execution of a series of renewal notes sufficient to establish a common basis of understanding for interpreting their expression so that the final renewal note must be subordinate and subject to the obligation as established under the course of dealings between the parties?"

We affirm the judgment pursuant to Rule 35.1(a)(2) and (7), N.D.R.App.P. See Amann v. Frederick, 257 N.W.2d 436 (N.D. 1977); Hanes v. Mitchell, 78 N.D. 341, 49 N.W.2d 606 (1951).

Gerald W. VandeWalle
Vernon R. Pederson, S.J.
Beryl J. Levine
H.F. Gierke III
Ralph J. Erickstad, C.J.

Pederson, S.J., sitting in place of Meschke, J., disqualified.