Indemnity Insurance Company Of North America v. American Deseret Limited Partnership

56 F.3d 460

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellee, v. AMERICAN DESERET LIMITED PARTNERSHIP, Thomas Bolcato, John E. Brathwaite, Wayne Epple, R.G. Ferrell, Terry L. Foster, Bruce F. Furst, David C. Goodlett, Gerald D. Huff, Timothy Hutchinson, Robert E. James, James W. Jensen, Jeffrey E. Lucas, M.H. Michaelson, Michael C. Moore, Andrew Mumma, Daniel D. Nickeson, Timothy O'Brien, Jackie Payne, Rodney G. Peterson, Republic Investments, Inc., Donny M. Seals, John D. Stahl, Ronald E. Stout & Mary Tavison, Defendants, Joseph C. Eyring & Joseph Garn Ford, Defendants-Appellants.

No. 1527, Docket 94-7258.

United States Court of Appeals, Second Circuit.

Argued May 25, 1995. Decided June 2, 1995.

Robert McL. Boote, Philadelphia, PA (Ballard Spahr Andrews & Ingersoll, Philadelphia, PA, Lawrence L. Flynn, Gottesman, Wolgel, Secunda, Malamy & Flynn, New York City on the brief), for plaintiff-appellee.

I. Walton Bader, White Plains, NY (Bader & Bader, on the brief), for defendants-appellants.

Before: KEARSE, CALABRESI, and CABRANES, Circuit Judges.

PER CURIAM:

1

Defendants Joseph C. Eyring and Joseph Garn Ford appeal from a final judgment of the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, granting summary judgment in favor of plaintiff on its claims for recovery on certain promissory notes signed by defendants-appellants. Defendants-appellants contend that the notes were unenforceable, arguing principally (1) that plaintiff was not a holder in due course because the notes were not acquired in good faith; and (2) that the fraudulent means by which Eyring and Ford were induced, by a third person unrelated to plaintiff, to sign the notes gave rise to a defense of "fraud in the factum," thereby precluding enforcement even by a holder in due course. We reject these contentions substantially for the reasons stated in the Opinion and Order of the district court dated July 1, 1993, see 887 F.Supp. 521 .

2

We have considered all of defendants-appellants' contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed.