100 Cal. 182 | Cal. | 1893
This is an appeal by plaintiff from, a an denying a motion for a new trial. The main history of the case is stated in the opinion of this court upon a former appeal (Montgomery v. Sayre, 91 Cal. 206); and it need not be repeated here.
The first question in the case is whether or not Sayre, deceased, made the ten thousand dollar promissory note to appellant sued on as surety for W. S. Chapman. Respondent contends that this question was decided affirmatively by this court on the former appeal, and that such decision is the law of the case. This court did say in its opinion on that appeal that “ Sayre was, in law, a surety”; but we will not inquire into the somewhat complicated question whether that statement was necessary to the determination of that appeal, and therefore the law of the case; because we think that the correctness of that statement otherwise appears. Indeed it appears from the complaint itself," which includes the presentation of the claim to the executor.
It is not pretended in the complaint that the Sayre note for ten thousand dollars was not given as security in some form, or that an action could be maintained upon it as on any ordinary promissory note, without averring extrinsic facts other than those appearing upon its face. The complaint avers that on April 19, 1884, the Pioneer Mining Company, a corporation, made and delivered to appellant (Montgomery) its promissory note for one hundred and ten thousand dollars, and “ that said note was indorsed by Wm. S. Chapman.” (The evidence shows that the indorsement was preceded by the words: “ Demand, notice, and protest waived April 19, 1884.”) It is then averred: “That at the time of said delivery of said note, and to secure the
From the foregoing averments it seems quite clear to us that Sayre was a surety for Chapman—for Chapman as well as for the mining company. It appears that on April 19, 1884, there was made and delivered to appellant a promissory note for one hundred and ten thousand dollars, signed at the bottom by the Pioneer company, and indorsed by Chapman, and that “to secure the payment of the same” Sayre, deceased, made the “ Sayre note” for ten thousand dollars. It was to secure the one hundred and ten thousand dollars just as it stood—with the names of the responsible parties
Sayre, then, being a surety, he was exonerated: 1. If appellant Montgomery released Chapman from all liability under said judgment, and thus released the surety; or 2. If Montgomery, having a judgment lien upon land of Chapman which, if sold at its real value, would have realized a sufficient amount of money to satisfy all indebtedness of the latter to the former, including said judgment, united with Chapman in selling and conveying said land at private sale to one Hughes for a price far less than its real value.
The jury returned a general verdict for defendant, no special issues having been submitted to them; and it is quite clear that they were warranted by the evidence in finding the first of the said two propositions in favor of respondent—that is, that Montgomery released Chapman. And there is no specification of the insufficiency of the evidence to support such a finding, or of any erroneous ruling of the court as to the admissibility of evidence on that point. Respondent contends that the general verdict imports a finding in his favor of all the material issues, and therefore a finding that appel
With respect to the question of the value of the land, appellant took a number of exceptions to the rulings of the court in passing upon offered evidence and instructing the jury on that subject. The various exceptions, however, present mainly one point, which may be stated as follows: appellant contended that the only question proper to be asked witnesses on the subject of value was, what would the land have brought if respondent had taken out an execution and had it sold by the sheriff at public auction for full cash value ? while the court admitted evidence that in the region of the land in question large tracts of land had never been sold for all cash, but for from one-fourth to one-third cash, and the balance on reasonable time and at a reasonable rate of interest secured by mortgage on the land sold, and allowed witnesses to be asked the general question: “What was the fair market value of the land at the time of the sale to Hughes?” In thus ruling the court, in our opinion, did not commit error. The appellant declined to pursue his lien against the land, and sold it at private sale; and having done so the question before the jury was the difference between the amount for which it was sold and its fair market value at the time of sale. And in arriving at the real value of the land the jury were not confined in this case, any more than they would have been in any other case, to what it would have brought at a forced sale for cash. They had
It is also contended that the court erred in allowing some testimony of the amounts for which Hughes sold some small parts of the land “a few months” after the sale to him. This, considering the other evidence in the case, would be a matter of too small importance to work a reversal of the judgment, even if it be conceded that the' ruling was erroneous. But we do not think that the ruling was erroneous. While the thing to be determined is the value on the day in question, still, evidence is not necessarily confined to that very day. Evidence of value for short periods before and after the day in question has been frequently allowed. Its allowance is greatly within the discretion of the court, and, under the circumstances of this case, we do not think that such discretion was abused.
The judgment and order appealed from are affirmed.
De Haven, J., Fitzgerald, J., Garoutte, J. and Harrison, J., concurred.
Rehearing denied.