19 P.2d 1013 | Cal. Ct. App. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *241 THE COURT.
Plaintiff filed two separate actions against defendant. The first was upon two drafts negotiable in form, called trade acceptances, each for $20,000, which were accepted by defendant. The drafts were made payable to Fried-Eisemann Radio Corporation, a corporation, and transferred by it to plaintiff. The second action was for the recovery of $14,363.50, the unpaid balance of an open book account for goods, wares and merchandise sold and delivered to defendant by Fried-Eisemann Radio Corporation and by it assigned to the plaintiff. It was alleged that the transfers were for value and, as respects the acceptances, made before maturity. Defendant admitted the acceptance of the drafts but denied that the same were transferred to plaintiff before maturity or for value. The material allegations of the complaint in the second action were denied. *242
As defenses to each action defendant alleged identical setoffs or counterclaims as against the transferor aggregating the sum of $34,871.59. The actions arose out of the same transaction between the same parties, and by stipulation they were consolidated for trial. A jury returned a verdict in the first action in favor of plaintiff for $40,000, and in the second a verdict for the defendant against plaintiff for $14,363.50. Separate judgments were entered in accordance with the verdicts.
In the first action defendant filed a notice of its intention to move for a new trial, and a similar notice by plaintiff was filed in the second action. Each specified all the grounds provided by the statute, and following motions by the respective parties a new trial was granted in each case.
Plaintiff appealed from the order entered in the first action and defendant from that entered in the second.
The orders were in general terms, and neither contained a specification that the same was granted on the ground of the insufficiency of the evidence.
[1] Where the order fails to so specify it must be presumed on appeal that it was not granted on that ground, and an appellate court is precluded from considering the question whether or not the evidence was sufficient to sustain the verdict unless it was insufficient in law. (Yoakam v. Hogan,
The trial court after making the orders filed a written opinion stating his belief that the jury intended to deduct from plaintiff's claims the counterclaims mentioned, but became confused, and as a result failed to do so.
[2] An opinion by the trial court is not part of the record on appeal (2 Cal. Jur., Appeal and Error, sec. 235, p. 488), and can only be used as an aid in discovering the processes by which the judgment was reached. (Estate of Felton,
[5] In the second action, however, defendant's demands against the transferor could not be made the basis for an affirmative liability on the part of the plaintiff (23 Cal. Jur., Set-off and Counterclaim, sec. 38, p. 266), and the verdict in that respect was contrary to the instructions of the court. Consequently it was a verdict against law, and might be set aside on a motion for a new trial. (20 Cal. Jur., New Trial, sec. 82, p. 130.)
As to the first action there remains the question whether the order can be sustained on the ground that errors of law were committed during the course of the trial. In this connection the parties discuss certain instructions given and refused, it being plaintiff's claim that all instructions given at its request were proper. This is denied by defendant, which further contends that the court erroneously refused certain of its proposed instructions, and that the errors justified the trial court in granting a new trial in the first action.
[6] Two instructions given at plaintiff's request are discussed in the brief. The first defined the rights of holders of negotiable paper and concluded with the following paragraph: "You are instructed that there are certain legal presumptions indulged in favor of negotiable trade acceptances to facilitate their use and negotiation: that they are presumed to have been accepted by defendant for a valuable consideration, and to have been purchased and endorsed to plaintiff for a valuable consideration, and that plaintiff took such trade acceptances in the usual course of business before maturity and for value, until the contrary is shown by defendant by clear and convincing evidence and such weight as to entirely dispel such presumption."
Every holder of a negotiable instrument is deemed prima facie
to be a holder in due course (Civ. Code, sec.
[8] With respect to the instructions offered by the defendant and refused, plaintiff alleged the transfer to it of the acceptances for value before maturity, and also a sale to it for value of the balance unpaid on the book account sued upon in the second action. To these defendant sought to offset counterclaims which it had against the transferor. It requested an instruction in effect that if there was a sale of the book account for an amount in cash, as claimed by plaintiff, and this transaction took place before the transfer of the trade acceptances mentioned, then there was no consideration for the latter transfer, and that plaintiff as to the acceptances was not a holder for value.
Although evidence was introduced in support of plaintiff's allegations, and it was alleged that the acceptances were received by the original holder as part payment on the book account, nevertheless the question whether plaintiff was a transferee of the latter instruments for value was one *245 for the jury, and the offered instruction might properly have been given.
Defendant's offered instructions Nos. 14 and 16 were properly refused, and a discussion thereof would serve no useful purpose. The same is true of a fourth instruction numbered 20 which it proposed.
Numerous instructions were offered by both parties, some of which were given as requested; others were modified by the court and still others refused. All of these we have examined and find nothing upon which error can be predicated.
[9] As stated, the cases were consolidated, and it would have been proper to have submitted the matter to the jury as one calling for a single verdict. (Union Lumber Co. v. Simon,
The orders are affirmed.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 1, 1933.