98 Cal. 323 | Cal. | 1893
This action was brought to recover $3,500, with interest, costs, etc., upon a promissory note made by defendants to plaintiff on March 29, 18-90, and payable July 1, 1890. The jury returned a verdict for plaintiff for only $1,240.24; and plaintiff moved for a new trial upon the grounds of insufficiency of the evidence to justify the verdict, that the verdict is against law, and errors of law occurring at the trial, etc. The court granted a motion for a new trial, stating in its order that the motion was granted because “ the first and third instructions offered by defendants’ attorneys, and given, are erroneous, and must have been misleading to the jury.” The defendants appeal from the order granting a new trial.
The facts necessary to be stated are these: In March, 1889, the plaintiff was, and for several years before that had been, engaged in the business of keeping a country store at Covelo in Mendocino County. The defendant Weill is her nephew, and for five years prior to the time last stated had been her principal clerk and assistant in said business. Ou March 18, 1889, she sold said business, together with certain real estate, live stock, and dioses in action to the defendants, Weill and Clifton. In payment for the property sold, in addition to certain cash payments and a mortgage for $1,500 on the real property sold, they gave her seven promissory notes for $500, each payable monthly in succession, the first becoming due on November 1, 1889. These notes not having been paid as they became due, and plaintiff becoming anxious for their payment a little over a year afterward, to wit: on March 29, 1890, the said notes were taken up by the giving of a note for $3,500, signed by said defendants, Weill and Clifton, and also by the defendant, George E. White, which is the note sued on in this present action.
Among the dioses in action sold by plaintiff to Weill and Clifton on said March 18, 1889, were eleven promissory notes, •which had been given by different parties to plaintiff; and all of said eleven notes were, at the time of said sale, overdue. These notes were at the time of said sale, and being overdue as aforesaid, indorsed by said plaintiff, that is, she wrote her name on the back of said notes. Plaintiff testified that she delivered . said notes to Weill and Clifton at the time of the sale without indorsement; and that about two weeks afterwards Weill re
“1. If you find from the evidence in this case that the plaintiff indorsed the eleven promissory notes by writing her name on the back of each, and that nothing was said by any of the parties when she did so about her liability thereon by reason of indorsing them, then she is liable and you will so find by your verdict, unless defendants failed to collect the notes or any of them through their own negligence."
“ 3. The indorsement of the eleven promissory notes by the plaintiff is admitted, and by that indorsement she made herself liable for their payment. Indorsing them as she did makes her liable, unless there was at the time a contract between her and Clifton and Weill that she was not to be held liable thereon. The burden of showing such a contract is upon her, and she must prove it to your satisfaction, from all the evidence, before you would be justified in finding that she is not liable.”
It is clear, as the court below decided when granting a new trial, that these instructions were erroneous. They are somewhat conflicting, but they announce the doctrine that the indorser of a note after its maturity is absolutely liable thereon, without regard to any right to have a demand made upon the
For the reasons above given the order granting a new trial-should be affirmed; for we see nothing in appellants’ point that said erroneous instructions were not prej udicial to plaintiff.
The order appealed from is affirmed.
Fitzgerald, J., and De Haven, J., concurred.