45 P. 1044 | Cal. | 1896
This is an action to recover upon a promissory note, made by the corporation defendant August 4, 1892, for $6,261.29, payable one day after date to the order of John Conly, in gold coin, with interest at eight per cent per annum, and indorsed by the payee thereof to plaintiff. Plaintiff had a verdict for $5,532.38, upon which verdict judgment was entered. Defendant appeals from the judgment, and from an order denying its motion for a new trial.
The evidence embodied in the statement on motion for a new trial shows that the note was indorsed to the plaintiff herein after maturity, viz., on October 4, 1893. Plaintiff, in her complaint, admitted the payment of certain sums of money to Conly on account of the note, and at the trial it was shown and admitted that those payments amounted to $1,687.55. They were indorsed upon the note, and tallied with a ledger account of defendant in evidence, in which, under bills payable, the note. was entered as a liability in favor of the payee, Conly, and the several payments credited to defendant in said account on account of money, etc., paid to said Conly. This is all plain and simple, and the verdict of the jury is founded on this basis. Defendant, however, produced another- account, kept with Conly personally, in which he stands charged with a balance of, say, $2,667.80, which defendant claims should have been deducted from the •balance due on the note, thus reducing the verdict by that amount. We will refer hereafter to this individual account
Upon the close of the testimony the court instructed the jury, in part, as follows: “Gentlemen of the jury: This is a question of accounting and bookkeeping. You have heard the evidence in this case, and you will have to ascertain from it, as best you can, the amount of money that is due to the plaintiff here. That the defendant owes the plaintiff is admitted by the defendant; but the question is, how much? The defendant claims that the amount claimed by the plaintiff is excessive, and that it is entitled to certain credits thereon, in consequence of demands which they had as against John Conly, who was the payee of the note transferred to the plaintiff. If you would find from the evidence that any of these items which counsel have called to your attention were designed and intended at the time to have been payments on account, or to the credit of the note, and that such items were agreed upon and determined before the date of the indorsement of the note to the plaintiff, which was October 4, 1893, they would be entitled to have them credited upon the amount due upon the note—principal and interest. If you should conclude that they are not entitled to any of these credits, then it would be your simple duty to ascertain the amount of principal and interest due, after deducting the amount of the cash payments which are contained on the back of the note.” The propriety of this instruction depended upon the evidence in the case. That evidence tended to show: (1) That from the formation of the corporation up to, say, December,. 1893, John Conly was president, director, general manager and a large stockholder of the defendant. (2) That during 1892 and 1893 A. S. Neal was secretary of the corporation defendant. (3) That, John Conly, the president, had advanced money to the corporation until on August 4, 1892, the corporation was indebted to him in the sum of $6,261.29, for which sum the note in question was given, and the account balanced upon the corporation books; the note being entered in the account of bills payable, and the sums as credited on the back of the note being charged in said last-mentioned account. (4) Plaintiff, being aware that the note was overdue, and hence that any payments thereon were liable to be offset against the note, on or about the date of the
We have thus stated in a general way the tenor of the evi'denee, and its sufficiency to support the verdict. In strictness, however, the specifications of the insufficiency of such evidence, as contained in the statement on motion for a new trial, are so indefinite that they might well have been disregarded. There are some eleven specifications in reference to the evidence. One will serve as a sample of all the others: “ (1) That the evidence clearly showed that the total amount due by defendant to plaintiff on the date thereof was not the sum of $5,532.38, but was the sum of $2,520.48, and no larger or greater sum whatsoever.” This form of specification is clearly insufficient: Adams v. Helbing, 107 Cal. 298, 40 Pac. 422; Moore v. Moore (Cal.), 34 Pac. 90; Spotts v. Hanley, 85 Cal. 165, 24 Pac. 738; Eddelbuttel v. Durrell, 55 Cal. 279; Hayne on New Trials, sec. 150; Parker v. Reay, 76 Cal. 105, 18 Pac. 124.
The second point made by appellant for reversal is that the defendant had no notice of the transfer of the note until suit brought. The learned counsel overlooks the testimony of James Love, who testifies that he notified Neal, the secretary, bookkeeper and a director of defendant, of the transfer of the note to plaintiff on the 4th or 5th of October, 1893, immediately after the taking of the note. This was a sufficient notice: Thomp. Corp., sec. 5195.
We think the court erred in admitting the declaration of Conly that there was $5,000 due upon the note at the date of its transfer to the plaintiff. It is true that he was president of the corporation defendant, and, under ordinary circumstances, his admission would bind the defendant, made within the scope of his authority. But as payee of the note, about to make a sale of it, his interests were antagonistic to defendant, and his declarations would not be binding upon the defendant. We are of opinion, however, that this error does not call for a reversal. The note showed for itself what was due, after deducting the indorsements. Defendant’s secretary testified that there was due on the note October 4, 1893, the sum of, say, $4,603.53, without interest, and the interest up to that date was some $517.33, thus bringing the amount up to, say, $5,091.27. Defendant’s books showed the same thing, and the only question really in dispute was
We need not again refer to the charge given by the court, upon its own motion, to the jury, or to the strictures thereon, for the reason that the only exception thereto is as follows: ‘ ‘ To which said charge, and the whole thereof, defendant then and there duly excepted.” This was general, and not sufficiently specific to call the attention of the court to the portions thereof now assailed: Rogers v. Mahoney, 62 Cal. 611; Frost v. Creamery Co., 102 Cal. 525, 36 Pac. 929; Moore v. Moore (Cal.), 34 Pac. 91; Cockrill v. Hall, 76 Cal. 192, 18 Pac. 318; Sukeforth v. Lord, 87 Cal. 399, 25 Pac. 497. Upon the whole case, as presented, we recommend that the judgment and order appealed from be affirmed.
We concur: Haynes, C.; Britt, C.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.