“We do not believe that the accumulation of interest and the absence of a timely demand for payment constitute material prejudice.”
How later courts described this case
- “We do not believe that the accumulation of interest and the absence of a timely demand for payment constitute material prejudice.”
- court referred to mortgage foreclosure action as "lawsuit" and considered whether laches applied
- “upon a clear showing of special circumstances, the defense of laches may be asserted prior to the expiration of the statute of limitations”
Written by the judges who cited it.
The opinion
Clifford F. Brown, J.,
dissenting. Because I am convinced that the trial court properly resolved this matter, I must dissent.
The record amply supports the trial court’s finding that there had been an accord and satisfaction of the note as a result of the 1966 round robin *355 and the subsequent payment of $24,000 by Sixty-Seven Corporation to Thirty-Four Corporation. Although there was evidence that this payment was never intended to satisfy this debt between the two corporations, it is not the province of a reviewing court to weigh the credibility of conflicting testimony. Where there is sufficient and reliable evidence to support the judgment of the trial court, that judgment should not be disturbed on appeal. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279 [ 8 O.O.3d 261 ], syllabus.
It is apparent from its findings that the trial court, upon observing the credibility and demeanor of the witnesses and reviewing the evidence as a whole, found the testimony offered by plaintiff to be less convincing than that of defendant. The record contains evidence sufficient to support the trial court’s conclusion that the note executed by appellant was satisfied in 1966. There was ample evidence to the effect that Pat Tonti acted in a manner inconsistent with the existence of a debt between Thirty-Four Corporation and Sixty-Seven Corporation. For example, the record reveals that he testified in another lawsuit that there were no outstanding debts between the two entities. His testimony during trial of the instant cause contained vacillations on certain key facts which almost certainly affected his credibility. He stated that interest was due on the note in question, but he testified at another trial that interest was never charged on accounts between the two corporations. He testified that the debt was secured when he had previously described it as unsecured.
Obviously, the trial court did not consider Tonti’s testimony credible. This conclusion is completely supported and should not have been disturbed on appeal. Based on this analysis, I would reverse the court of appeals and reinstate the judgment of the trial court.
Locher and Holmes, JJ., concur in the foregoing dissenting opinion.