108 P. 880 | Cal. Ct. App. | 1910
This is an action to recover $1,300 and interest at the rate of five per cent per month, compounded monthly, alleged to be due and unpaid upon a promissory note dated, "Los Angeles, Cal., January 17th, 1903," made payable generally to Watson Company, by whom it was transferred for collection to plaintiff. Judgment went against defendant Collins by default. Defendants Kemp and Alderson answered, alleging, among other defenses, that the action was barred by section 339, subdivision 1, Code of Civil Procedure. Among other things, the court found: "The note sued on in this case and set out in the complaint was not executed until it was deposited by the defendant Alderson in the postoffice in Chicago, in an envelope directed to John W. Watson, and was therefore executed out of the state of California, and in the state of Illinois, and is barred by section 339, subdivision 1, of the Code of Civil Procedure of the state of California."
Judgment followed in favor of defendants Kemp and Alderson. From this judgment, and an order denying his motion for a new trial, plaintiff appeals.
Appellant's contention for a reversal is based solely upon the ground that this finding of the court is unsupported by the evidence, his claim being that the note was executed in this state. Section 339, subdivision 1, Code of Civil Procedure, prescribes the time for the commencement of actions founded upon instruments of writing executed out of the state to be within two years. The complaint herein was filed a few days prior to the expiration of four years after the note matured. If, therefore, it was executed out of the state, as claimed by respondents, then, clearly, the cause of action thereon was barred. (Higgins v. Graham,
While there is some conflict in the evidence, it clearly tends to show the following facts: Collins desired to borrow $1,100, and he and Kemp went to the office of Watson Company, whose calling was that of lending money, and applied for *788 the loan. As security for the payment of same Collins proposed to assign to Watson an interest in a certain oil venture, which he held with Alderson, and also have Alderson, who resided in Chicago, sign the note. Watson declined to make the loan upon the security then offered, but during the negotiations proposed to loan the money upon a note signed by all three of the defendants, provided he received an assignment of an interest equal to the sum of $500 in the oil venture, and, in addition to this and the interest reserved in the note, received also a bonus of $200. Collins and Kemp assented to this proposition, and in accordance with this agreement Collins and Kemp, at Los Angeles, California, signed and delivered to Watson a note identical in form with the one set out in the complaint, and Collins attached his signature to an instrument whereby he assigned to Watson the said interest in the oil venture, which, however, it seems, had to be approved or accepted by Alderson. At the same time with the making and delivery of this note so executed by Collins and Kemp, they also signed the note upon which this action is based, and this last-mentioned note, together with the assignment of the oil interest, and letters written by Collins and Kemp to Alderson, requesting him to sign the note and return same to Watson, were, with an envelope addressed, "John W. Watson, 322 Los Angeles Trust Building, Los Angeles, California," all inclosed in an envelope, which was addressed to Alderson at Chicago, and by Watson deposited in the United States postoffice at Los Angeles. At the same time Watson paid to Kemp for Collins the sum of $1,100, the amount agreed to be advanced on the $1,300 note. Alderson received the note and other papers so forwarded to him through the United States mail, and, after signing his name to the note, inclosed it in the self-addressed envelope to John W. Watson, which had been sent to him for such purpose, and deposited it in the postoffice at Chicago, all in accordance with the understanding and agreement had between Collins, Kemp and Watson. Watson received it in due course of mail, and thereupon delivered to Collins and Kemp the note which they alone had signed, as above stated. Says Mr. Kemp in his testimony: "The agreement with Mr. Watson and Mr. Collins was that Mr. Collins should sign the note, that I should sign the note, and that it should be sent to *789 Mr. Alderson in Chicago to be signed by him and then returned to Mr. Watson." In our opinion, this evidence fully sustains the finding.
The place where the contract was written, signed or dated does not necessarily fix or determine the place where it was executed. Delivery of the instrument is the final act essential to its consummation as an obligation. (Civ. Code, sec.
The general rule is that depositing a note in the postoffice addressed to the payee with his assent is a sufficient delivery thereof. (Daniel on Negotiable Instruments, sec. 67;Barrett v. Dodge,
Judgment and order affirmed.
Allen, P. J., and Taggart, J., concurred.
*1