First National Bank of Oakland v. Wolff, No. 11965

No. 11965 | Cal. | Apr 27, 1889

Lead Opinion

Thornton, J.

Action by plaintiff against defendant on a promissory note. Verdict and judgment passed for defendant. The appeal is prosecuted by plaintiff from an order denying its motion for a new trial.

The execution of the note was denied by the defendant, and the main issue was, whether or not the note sued on was or was not a forgery.

The note as offered in evidence was in these words:—

“$2,000. Oakland, Cal., Oct. 27, 1882.

“ One day after date, without grace, for value received, I promise to pay to the First National Bank in this city, to First National Bank of Oak’d, or order, two thousand dollars, payable in gold coin, with interest thereon in like gold coin from date until paid, at the rate of nine per cent per annum, payable monthly in advance.

“Secured by grain in Hayward’s warehouse.

“No. Receipt No. 124. “A. Wolff.”

The plaintiff’s contention is, that the note was signed by Wolff as an accommodation to R. H. Bennett, who received the money on it on the 28th of October, 1882, from the plaintiff. When signed by Wolff the words “of Oak’d” were not in it, and the rate of interest was left blank. Bennett testified that the note was signed and handed to him by defendant, with rate of interest left blank, for the reason that they did not know what rate the bank would charge, and that he was empowered by Wolff to fill up the blank with the rate agreed on. He so informed the bank, and after some conversation with one of the officers of the bank, the rate of nine per cent per annum was agreed on, and the blank was so filled in by Bennett or at his instance. At the end of the note was written by Bennett, “Receipt No. 124.” The insertion of the words “of Oak’d” was immaterial. The form of the note used showed that the bank was the First National Bank of Oakland. The note was dated at “Oakland,” and the form used contained the words “at the First National Bank of this city.” This could mean no other bank than the First National Bank of Oakland, and therefore the insertion “of Oak’d” added nothing to the note that it did not mean before, and was immaterial.

The words “Receipt No. 124” were no part of the note, and did not affect its meaning in any way. The purport of these words was, that the receipt No. 124 was a security for the payment of the money for which the note was executed. We cannot see that they were material, or affected the note in any Way.

If Bennett had authority from defendant to fill up the blank with the rate of interest, the insertion of the rate was not at all improper, and would bind defendant. If he had not such authority, and Wolff signed the note and delivered it to Bennett to raise money on it, it bore interest at the legal rate, and the insertion of it would, not render the note void.

We are of opinion that the insertions were innocently made, and that the note was not avoided by them, for the reason above stated.

From the note itself, it appears that it was secured by grain in Hayward’s warehouse as collateral. The receipt, the number of which was appended to the note, called for 1,198 sacks of wheat stored in the warehouse above stated. It is averred in the complaint that the security above mentioned had, without any act or default of plaintiff, become valueless; that the grain, of which the security consisted, had since the delivery of the note to plaintiff been, without the act or fault or consent of plaintiff, removed from the warehouse to places unknown to plaintiff; that this grain was at the time of the commencement of this action the subject of litigation between persons not parties to this action, and it was there claimed to be owned by persons unknown to the plaintiff, other than those who had asserted their claims by such claims or actions.

On the trial, Bennett was asked several questions in relation to this grain, which were objected to. The objections were overruled, and the plaintiff, by its counsel, reserved exceptions.

We can see no good reason why the questions or the answers to them were not properly admitted in evidence. All of them had relation to the transaction, and were relevant to the issues joined in the cause.

We find no error in the ruling as to the question put to Moody, the president of the plaintiff bank, as to making inquiry about the grain which purported to have been pledged to secure payment of the note.

But in our judgment the court erred in allowing the introduction of Wolff’s conversation with Bennett about the note in suit, which took place after the bank had acquired the note sued on, and when no one representing the bank was present.

The court also erred in striking out the testimony of D. Stuart. The witness was competent and his testimony admissible.

The allowing Gumpel to be called at the stage of the trial at which he was introduced as a witness was a matter within the discretion of the court below, with which this court is not authorized to interfere. (Barkly v. Copeland, 74 Cal. 1" court="Cal." date_filed="1887-10-31" href="https://app.midpage.ai/document/barkly-v-copeland-5443209?utm_source=webapp" opinion_id="5443209">74 Cal. 1.)

The failure of the cleric to enter judgment on the verdict within twenty-four hours after it was rendered was not error.

The injunction of the statute (Code Civ. Proc., sec. 664), in that regard is directory only, and does not affect the legality or validity of the judgment afterward entered. Further, if the plaintiff felt aggrieved by the failure of the clerk to enter the judgment within the time designated by the statute, he might have moved the court for an order directing him to do so, which no doubt would have been granted. Moreover, we cannot see how the plaintiff was in any manner injured by the delay of the clerk in entering the judgment.

We find no other errors than those above pointed out, but for those the order denying plaintiff's motion for a new trial is reversed, and the cause remanded, that a new trial may be had in accordance with the views expressed in this opinion.

So ordered.

McFarland, J., and Sharpstein, J., concurred.

A petition for a rehearing having been made, the following opinion was rendered thereon, on the 25th of May, 1889:—

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Rehearing

The Court.

The rehearing is denied; but we are of opinion that the court did not err in allowing Wolff’s testimony regarding his conversation with Bennett as to the note in suit, inasmuch as Bennett had, as witness for the plaintiff, previously testified as to it.

The opinion heretofore filed is modified in that respect.