Opposed to this was the testimony of the witness Logan, a real estate broker, who testified that from his observation of the work done by defendant Atlas Contracting Company this work was limited to plastering a part of two rooms, and that the reasonable cost thereof was between $ 400 and $ 500. This witness freely admitted on cross-examination that he did not examine the premises carefully and that he was in no position to say what items had been completed by defendant Atlas Contracting Company.
The court therefore has for determination whether defendant Atlas Contracting Company complied with the terms of the contract. The court finds that as to the requirement of payment of the balance due on the note of August 9, 1948, such payment was made on May 17, 1962; that as to payments made by plaintiff after execution of the contract, she is entitled to be reimbursed by the defendant Galenski; and that plaintiff is entitled also to have credit for the unfinished work conceded by defendant Galenski to be due to plaintiff, which the court finds to be in the amount of $ 350.
The court finds that there was substantial performance of the contract; that the work called for was in fact done save as to the aforementioned unfinished work which defendant Galenski was unable to do through inability to get into the premises.
The court finds that the contract of October 17, 1961, between Atlas Contracting Company, Inc., and Ethel Smith was not void, but valid as between W. Galenski and Ethel Smith; that said W. Galenski and Ethel Smith were competent parties; that the contract was not ambiguous; and that there was a valid consideration therefor.
The court, having found the contract not void, further concludes that, even if it were void as to plaintiff and defendant Galenski, under the facts in this case the defendant Scheve would be entitled to relief as the court finds him to be a holder in due course.
Plaintiff contends that the purchase, for $ 5,300, of a $ 6,500 note is an item for consideration by the court in resolving the issues in the case. The existence of a large or even an unusually large discount, however, without more, does not establish that the purchaser is not a holder in due course. See Wilson v. Gorden, D.C.Mun.App., 91 A.2d 329 (1952). Furthermore, the present note calls for payment of only $ 60 per month, covering principal and interest, whereas the original note provided for $ 90 per month. The testimony in the case shows that this was not an unreasonable or shocking discount under all the circumstances. Assuming timely and regular payments, this loan would extend for a great period of time.
As to the claim of plaintiff against defendant Scheve, the court finds that said defendant was not, at any time critical to the determination of these proceedings, associated with the defendant Galenski or the Atlas Contracting Company, and, more specifically, that the defendant Scheve had nothing to do with the procurement of the contract or the work to be done thereunder.
The court finds: (a) that the note is complete and regular upon its face, (b) that defendant Scheve became holder of the note before it was overdue, (c) that defendant Scheve took the note in good faith and for value, and (d) that at the time the note was negotiated to him defendant Scheve had no notice of any infirmity in the instrument or defect in the title of the person negotiating the note. (Section 28-402, D.C.Code.)
This memorandum is in lieu of findings of fact and conclusions of law.
It is therefore, this 13th day of November, 1964,
Ordered that the preliminary injunction entered herein be and the same is hereby vacated, and that the defendant Scheve have judgment against plaintiff on his counter claim for $ 6,682.10, with interest at 6% On $ 6,500 from October 18, 1961, and on $ 182.10 (costs of foreclosure called off at request of plaintiff) from October 2, 1962, and an attorney's fee of $ 200.
It is further ordered that the cross-claim of defendant Scheve against defendant Galenski for indemnity be, and the same is hereby, dismissed as moot in view of findings and conclusions of law hereinbefore set out in the principal action of plaintiff against defendant Galenski.
It is further ordered that the plaintiff have judgment against defendant Galenski for the respective sums of $ 275 and $ 350 found hereinbefore to be due plaintiff for payments made by plaintiff on original note after entry into contract of October 17, 1961, and for the value of the unfinished work contracted for by plaintiff, both aggregating $ 625.