Corcoran v. Doll, 32 Cal. 82

Corcoran v. Doll

32 Cal. 82 | Cal. | 1867

By the Court, Sanderson, J.:

I. The objection to the judgment on the ground that it includes the interest and directs that the judgment shall draw interest at the rate of one and a half per cent is not tenable. It has been repeatedly held that it is not error to include principal and interest in the judgment, and direct that thereafter the whole sum shall draw the same rate of interest which the principal drew by the terms of the contract. (Guy v. Franklin, 5 Cal. 416; Emeric v. Tams, 6 Cal. 155; McCann v. Lewis, 9 Cal. 247; Mount v. Chapman, 9 Cal. 297.) The judgment not being by default, but upon answer and after trial, the fact that the complaint does not ask for interest upon the judgment is' of no consequence. Where the judgment is upon a trial, the Court may grant any relief which is within the issue, notwithstanding it may not be included in the prayer of the complaint. (Lane v. Gluckauf, 28 Cal. 294.)

II. The objection that the note was improperly admitted without evidence of the genuineness of the signature, is also without substantial foundation. The action is upon the note, and the complaint contains a copy, and the answer is not verified. Where such are the conditions, the due execution of the note is admitted. (Prac. Act. Sec. 53.)

III. The point that the note ought not to have been admitted in evidence until after, the plaintiff had accounted for the erasures appearing upon the face of it is also untenable. The four hundred and forty-eighth section of the Practice Act applies to a case where the alteration has been made, or appears to have been made, after the execution of the instrument, and where the alteration is as to a part of the instrument which is material to the question in dispute. The note does not match the first of these conditions. It does not appear to have been altered after its execution. The note is not in writing, but in print. As *89printed, it is payable “ at the banking house of Doll & Simpson, in Red Bluff,” and the interest “payable monthly quarterly.” The place of payment and the word “ monthly ” are erased by a line in red ink drawn through them. The use of both the words “ monthly quarterly ” in the printed form is manifestly either a misprint or they were both inserted with the intent that one or the other should be erased when the form should be put in use, for it would be absurd to provide that the interest should be payable both monthly and quarterly, and it certainly would be difficult of performance without paying interest twice at the agreed rate. Had the note been in writing and not in print there might be some ground for saying that the words “ at the banking house of Doll & Simpson, in Red Bluff,” were erased after the execution of the note, or so appeared. But in view of the fact that a printed form was used, which could not have been printed especially for the use to which it was put, and must have been printed prior to the time the contract in suit was made; and in view of the fact that the erasure of the word “monthly,” which was incontestibly made prior to the execution, is in the same kind of ink, leaves no plausible reason for saying that the note was altered, or that it has the appearance of having been altered after it was executed. Where printed forms are used, they frequently have to be altered to suit the terms of the contract, and where an alteration is made only as to the printed matter the presumption is that it was made prior to the execution of the contract, and made to suit it to the terms agreed upon between the parties.

What we have here said is also an answer to the point that there is a variance between the copy of the note given in the complaint and the original which was offered in evidence. • Read the latter without the erasures and the former is a copy, except that it gives the word “ administratrix ” in full, instead, as abbreviated in the original, and states the rate of interest in words as well as figures, which the original does'not; which discrepancies are wholly immaterial. Doubtless it would *90have been better to have given a fac simile. Had that been done, accompanied with the averment that the erasures were made before the execution of the note, and the complaint verified, the whole question would have been satisfactorily settled, doubtless by the pleadings alone.

IV. Nor is there any merit in the point that, conceding the note to be the separate property of the wife, the action was improperly brought in the names of both husband and wife, although in such a case the wife may sue alone if so disposed. She may also, if so disposed,, join her husband. (Van Maren v. Johnson, 15 Cal. 308, and Peyser v. Calderwood, 31 Cal. 333.)

V. Nor did the Court err in excluding the evidence oifered by the defendants to prove that the plaintiff, Elizabeth Corcoran, was hot the real party in interest. The note on its face is made payable to her and was at the time in her possession, and conceding that the money which she loaned and for which the note was given, belonged to the estate of her deceased husband, and that she was at the time acting as administratrix of his estate, the note itself was nevertheless her property and she is therefore the real party in interest within the meaning of the fourth section of the Practice Act. Parsons states the rule thus: “ Only the executors and administrators, and not the heirs or next of kin of persons deceased, can claim possession of his notes and bills, or demand payment, or put them in suit. * * * It is otherwise if they receive a note payable to themselves, though for a debt due to the estate, and though payable to them as executors. For in such a case their representative character constitutes no part of their title. The note never belonged to their testator, but vested in them originally. And if a bill or note, belonging to the testator at the time of his de'cease, is payable to bearer, they need not in suing upon it make title through him ; they may sue as bearers simply. The same distinction is applicable to guardians, receivers, assignees in bankruptcy, and trustees of any description.” (1 Parsons on Bills and Notes, 154.)

Perhaps, in such a case, if the defendant has a counter *91claim against the estate of the deceaséd, and the money due on the note would be when paid assets in the hands of the plaintiff, he could set it up in defense pro tanto, but there is no such question in this case.

Judgment affirmed.