119 P. 666 | Cal. Ct. App. | 1911
This action was brought by plaintiffs upon two alleged demands against defendant, the first being to recover the sum of $306.50, money alleged to have been deposited with defendant bank and which the latter had refused to repay the plaintiffs; the second being for the sum of $126, as damages alleged to have been suffered by plaintiffs because of the failure of defendant to give seasonable notice to the plaintiffs of the dishonor of certain negotiable instruments in the form of time-checks, which had been indorsed to defendant for the purpose of collection. The judgment was in favor of the plaintiffs on both counts of their complaint, and this appeal is taken from that judgment, and also from an order denying a motion for a new trial.
In answering the first cause of action alleged by the plaintiffs, defendant admitted that the sum of money first claimed had been deposited with it in the usual course of its banking business and placed to the credit of plaintiffs. It was then set out by way of special defense that this credit had been levied upon under writ of execution issued on a judgment of the justice's court of Los Angeles township in an action brought by one Brodzevich against the plaintiffs, and that the full amount deposited had been paid to the constable holding such writ, upon his demand. At the trial, for the purpose of establishing this defense, the defendant called the clerk of the justice's court as a witness, who produced the docket of the justice and the files in the justice court action. The docket record was then offered in evidence, but upon a general objection being made by plaintiffs that this offered record was incompetent, irrelevant and immaterial, the court refused to allow the evidence to be received. The bill of exceptions shows that, after the offer had been made, the trial judge examined the record. The bill of exceptions then proceeds: "The Court: I find no summons here. Defendant's Attorney: The summons is not there, Judge; it's gone. The Court: There is a complaint and execution. Thereupon the court sustained the plaintiffs' objection to the question aforesaid propounded to the witness and as corrected by the court, *304
to wit: 'Q. Now, you have the docket. Will you please read the court the docket in the case?' and refused to permit the justice's docket to be introduced and read in evidence." The witness was allowed to testify that he knew that a summons in the justice court case had been returned, and that since its return it had been lost; that he had made a diligent search, but could not find it. This witness was asked several questions to which objections were made and sustained by the court. Among these questions was the following: "Now, Mr. Clerk, what day was that summons issued?" The court after sustaining an objection to this question remarked: "If you are going to prove a lost summons you will have to prove its contents by somebody who saw it and remembers its contents." Counsel for defendant then proceeded with the following questions: "Well, do you know whether on the seventh day of March of this year, in the case of Mike Brodzevich against George Christe and Prkachin a summons was issued?" "Do you know what the contents of that summons was, if one was issued?" To each question objection made by the plaintiffs was sustained. The writ of execution as issued on the justice court judgment was allowed in evidence by the trial judge, and, so far as the bill of exceptions shows, this writ was the only document of the files of the justice's court which was permitted to be introduced in evidence, and there was no testimony, other than that stated, which referred to that action. Such was the state of the evidence with reference to the first cause of action when defendant rested, and the plaintiffs offered no testimony of any sort in rebuttal. If it appeared from the docket record of the justice referred to that the action in which judgment was rendered and the execution mentioned had issued was an action in which the plaintiffs here were defendants, then such record was admissible in evidence. Section
While it necessarily follows from the conclusions expressed in the foregoing that the judgment must be reversed and a new trial had of the action, brief consideration may be given the questions argued affecting the correctness of the conclusions of the trial court made as to the cause of action which relate to the negotiable instruments called time-checks which were transferred to defendant for the purpose of collection. On this branch of the case we agree with the determination as made by the trial judge. It appears that the Patillo Contracting Company drew certain orders, eleven in number, against itself, payable to the persons whose names appeared therein as payees, or their order, and that several of the payees indorsed these time-checks over to the plaintiffs, who in turn deposited them with defendant for collection. These time-checks were payable at the office of the contracting company on March 5, 1910, and were deposited with the defendant bank prior to that date. Defendant bank failed to secure payment of these orders and gave no notice of nonpayment to plaintiffs until April 6, 1910, more than one month after the several bills became payable. No excuse for the delay in giving notice of dishonor of these negotiable instruments was offered by defendant, except the plea was made that the bank had handled the time-checks in the manner it was accustomed to handle such matters; and further, it was pleaded in defense that the Patillo Contracting Company had on the fifth day of March, 1910, become insolvent. It was not shown in evidence that plaintiffs had notice of the custom of the bank as to the time of giving notice of nonpayment, or that by any condition of agreement made with the bank at the time the checks were deposited for collection, plaintiffs excused defendant from the duty of giving prompt notice of nonpayment of such checks. Section
The judgment and order are reversed.
Allen, P. J., and Shaw, J., concurred.
