79 Cal. 224 | Cal. | 1889
This is an action on a promissory note alleged to have been made by Louis G. Partridge, deceased, on February 19,1885, for two thousand dollars, payable to plaintiff on demand after date. The answer
1. Appellant contends strenuously that the evidence is insufficient to justify the jury in finding that the deceased made the note, or that there was any consideration for it; but if it could be rightfully said, in the language of appellant’s counsel, that “it is difficult to avoid looking upon the claim of Mr. Cousins in this connection without suspicion,” that at least is all that could be rightfully said on the subject. There certainly was strong evidence tending to show both the making of the note and the consideration, and we cannot say that the verdict is not justified by the evidence, and that, notwithstanding the fact that plaintiff and the deceased held the relation toward each other of attorney and client.
2. Appellant contends that the court, when charging the jury, erred in reading part of the opinion of the court of appeals of the state of New York in a certain case decided in that court. Reading from the opinion of another court when instructing a jury is, perhaps, not a practice to be commended; but as the part of the decision read in the case at bar appears to be a correct statement of the law, and applicable to the case before the jury, we do not see how the practice in this particular case affords a ground for a reversal of the judgment. All that the court told the jury, before reading the extract from the opinion, was, that “it was a case somewhat similar to this.”
3. Appellant objects to the charge of the court, because in one place the jury are told that the execution of the note “ is just about the only question for you to determine,”—the argument being that this language took away from the jury the question whether or not there
4. There was no error or abuse of discretion in the court allowing plaintiff to introduce certain testimony after defendant had closed his evidence.
5. Appellant complains of one or two remarks made by the court to counsel during the trial of the cause about the immateriality of certain evidence which was admitted; but no exceptions were' taken to the remarks at the time they were made, and they are not brought here in any legal way for review. And if we could review them, they are not of sufficient importance to work a reversal of the judgment.
6. Appellant contends that the motion for nonsuit should have been granted,-because the note was not due when the action was commenced. The note was made and dated February 19, 1885, and was payable on demand, without interest. The action was brought June 15,1885, less than six months after date, and the contention of appellant is, that it was not due until six months after date, under certain provisions of the Civil Code.
It has always been the rule that suit may be brought on a note payable on demand at any time without any previous demand,—-the suit itself being all the demand necessary. The rule has been occasionally criticised by judges as illogical; but it has been universally followed by courts, and is as well settled as any other rule of law that could possibly be suggested. Counsel contends,
7. There are no other points which need to be noticed in detail. We think that the presentation of the claim to the administratrix is sufficiently averred, and that
Judgment and order affirmed.
Sharpstein, J., and Thornton, J., concurred.