52 P. 499 | Cal. | 1898
The plaintiff brought this action to recover the amount due on a promissory note for $1,035, executed by defendant Alex De Borra to plaintiff, and to have foreclosed said defendant’s interest and equity of redemption in and to two certain described promissory notes alleged to have been pledged by him to plaintiff as security for the payment of his said note, and to be held by the defendant Orange Growers’ Bank as pledge-holder. The prayer was for judgment against defendant De Borra for the sum of $834.82, and that the said notes so held in pledge be delivered by the Orange Growers’ Bank to the sheriff of the county, and sold by him according to law, and that the proceeds of the sale be applied in payment of the amount due the plaintiff. Defendant De Borra answered, but set up no defense to the note sued upon. He denied having pledged the two notes as alleged in the complaint; denied that the Orange Growers’ Bank was a pledge-holder of the notes, and alleged that Mary F. De Borra was the true and lawful owner of the said notes, and that, as her agent, he had placed them in the bank for her. The Orange Growers’ Bank answered, stating that it had “no interest whatever in the matter in controversy, and is willing to surrender said notes to whomsoever shall be entitled thereto, and for that purpose deposits with this court said notes, to be by said court delivered to the party that this
It is claimed for appellant that the findings were not justified by the evidence, and that the court committed several errors in law which call for a reversal. The facts proved
“The Riverside National Bank:
“Please hold the collaterals now in your possession, viz., mortgage and notes on Riverside Steam Laundry, to the payment of Mr. St. Clair Ormsby, and apply same to his notes after your claim is satisfied.
“April '5, 1894.
“ALEX DE BORRA.”
The plaintiff and his attorney then took the said note and paper, marked as “Plaintiff’s Exhibits A and B,” to the Riverside National Bank, and delivered the same to its cashier. The bank then held as security for an indebtedness of the defendant to it notes made to him by the parties who owned the steam laundry, including the two notes in controversy here. The cashier produced the said notes, and exhibited them to the plaintiff, and was told to hold them as security for him. The indebtedness of the defendant to the bank was paid off a few months later, and money was afterward collected by the bank on the notes and indorsed as payments on the plaintiff’s note. During all this time defendant had a running account at the bank. Subsequently, but at what
Mrs. De Borra testified: “On January 3, 1893, he [her husband] bought the steam laundry property, with my money, for me. I didn’t say anything as to who should take the title to that property. I supposed he took the property in my name, and did not know otherwise till this suit for these notes was brought. My husband had no money. I received mine from my brother’s estate. The first payment that I received from that estate was $12,000, received in the fall of 1892. He sold the laundry, with my knowledge and consent, to the present laundry company. I was present when the sale was talked of. My husband did the business for me, but I knew the parties, and talked with Mr. Conrad and Mr. Crawford. I didn’t see the notes taken for' the property. I supposed they were made payable to me.....The notes were placed in the National Bank as collateral security for a note we owed the bank.” And on cross-examination she said: “I don’t know that the doctor ever had a deposit of his own in any of these banks. I supposed the doctor checked against this money for the laundry. My bank account was less. I supposed it went there. I never knew he had any money after that date, so I could not say that he paid it with his own. .... The deeds for the property were not taken in my name. I couldn’t téll you whose money bought that land. I don’t know that the doctor had any money at that time. I supposed it was my money that paid for it. The doctor does not hold that land as my agent.”
During the progress of the trial it was stipulated by counsel for the respective parties to the action “that the property known as the ‘Riverside Steam Laundry Property’ was originally owned by one J. Wesley Brooks, and that it was transferred by him to the parties composing the Riverside Steam Laundry Company on or about January 3, 1893, and that Dr. De Borra furnished the money for such transfer; that on the third day of January, 1893, or thereabout, the parties composing the Riverside Steam Laundry Company deeded this property to Dr. De Borra, and took from Dr. De Borra a contract for a deed, in which contract the parties composing the Riverside Steam Laundry Company agreed to pay $3,500,
1. Following the averments of the complaint, the court found, after reciting the making of the note by defendant to plaintiff on April 5, 1894, “that at the same time the said defendant Alex De Borra indorsed and delivered to the Riverside National Bank, a corporation, then doing a general banking business in the city of Riverside, California, the two promissory notes set out in paragraph three of plaintiff’s complaint, as security for the payment of. said promissory note set out in paragraph 2.” This finding is assailed by appellant as not justified by the evidence; and it is said all the evidence shows “that on the said April 5th, said De Borra did not have said notes in his possession at all; that long previous to that date the said De Borra had indorsed and delivered the said potes to said bank as security for a debt owed by defendant to said bank, and that said De Borra never at any time had possession of said notes, or reindorsed them, or delivered them to the Riverside National Bank as security for plaintiff’s note.” It is true that" the finding is not precisely accurate in its statement of the facts, but it is substantially so. The notes having been already' indorsed by defendant, it was not necessary that they be reindorsed; and, having been already delivered to the bank as a pledge, it was not necessary that they be actually delivered to the plaintiff. The indorsements on the notes, and the order to the bank to hold them for the payment of plaintiff’s note, constituted, in effect, an indorsement and delivery to him as a pledge. The law applicable to such transactions is stated in Jones on Pledges, section 83, as follows: “A delivery is sufficient which vests the title and control of the paper in the pledgee. Whenever, from the circumstances of the case, an actual delivery is impossible, the pledge may rest upon the contract of the parties, accompanied by the possession of a third person. Thus a note already pledged and in the possession of the pledgee may be again pledged by the owner to another person, subject to the lien of the first pledge, without any
2. The court further found that Mrs. De Borra was not, on the third day of January, 1893, or at any time subsequently, the owner of the property known as the “Riverside Steam Laundry”; that the defendant did not on that day, as agent for Mrs. De Borra', sell said property, and take in payment therefor the two notes in controversy; and that Mrs. De Borra never was the owner of said notes, or entitled to the possession thereof. It is claimed for appellant that this finding was not justified by the evidence; and it is said that all the evidence, admissions and stipulations show that defendant bought the said property for Mrs. De Borra with her money, and that as her agent he sold the same, taking in part payment therefor the said two notes, and that she was the owner and entitled to the possession thereof. It is true, Mrs. De Borra testified that the defendant bought the said property with her money, but on cross-examination she said she could not tell whose money bought the property; that she supposed it was her money that paid for it. And, as tending to contradict her statement that she owned the said property and notes, two witnesses testified that when she was asked to sign as surety her husband’s notes to the plaintiff she said he had security, for he had the laundry property and other securities; that he ought to be able to pay his debts and to give security. “There is the laundry property. He must have security.” Looking, then, at all the evidence, in view of the well-settled rules of this court as to conflicting evidence, we think it cannot be said that this second finding was not justified.
3. The objections to the other findings rest upon the same grounds as those above considered, and, for the reasons already stated, cannot be sustained.
4. Under the head of “Errors in Law” appellant claims that, “if the findings were all warranted by the evidence in the ease, still the conclusion of law ‘that said plaintiff is entitled to the possession of said notes set out in paragraph 3 of said plaintiff’s complaint’ is wholly unwarranted by any facts found, and is not sustained by the pleadings. ’ ’ Counsel
It is further claimed that the court erred in admitting in evidence, over the objection of appellant, Plaintiff’s Exhibit B and the two notes in controversy. The exhibit described the notes which it directed the Riverside National Bank to hold for the plaintiff as “notes on Riverside Steam Laundry,” and it was proved that the parties who signed them constituted the Steam Laundry Company at that time. It was also proved that the notes objected to were two of the notes referred to. This being so, we fail to see any valid ground for the objections to the admission of the said exhibit and notes in evidence. It follows that the judgment and order appealed from should be affirmed, and we so advise.
We concur: Haynes, C.; Chipman, C.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.