205 P. 431 | Cal. | 1922
Lead Opinion
This is an appeal from a judgment in the plaintiff's favor in an action to recover the amount of a certain check for the sum of $750 issued by the defendant to Goldstein Company, a corporation, and by the latter, through its president, Robert Goldstein, indorsed, assigned, and delivered to the plaintiff, and upon which check payment was stopped by the defendant. The answer admitting the making and issuance of said check, but alleged in substance that the same had been issued by the defendant under a misapprehension and mistake as to the amount due by it to the Goldstein Company, there being, in fact, at the date thereof, only due to the said Goldstein Company the sum of $17.50, and that as to all above said sum the check was without consideration. The defendant further alleged that the said Goldstein Company knew of this fact and took and received said check with full knowledge that it was being issued under a mistake of fact and was without consideration; and the defendant also alleged that the plaintiff at the time of the assignment and delivery to him of said check by the Goldstein Company was informed by it that the said check had been issued to it under said mistake of fact and that same was without consideration, and took said check with full knowledge of said facts. For a further and separate answer and defense the defendant repeated by reference the foregoing averments of its answer and further alleged that the said Goldstein Company delivered the said check to the plaintiff for the purpose of having him cash the same and pay certain debts and obligations of said corporation on its behalf, and that in so receiving said check and in all things done by him with reference thereto the plaintiff was acting as the agent of said corporation, and his acts were the acts of said corporation. Wherefore the defendant prayed that the plaintiff take nothing by his said action.
The cause came on for trial on the issues as thus framed, and upon the submission thereof the court filed its findings of fact and conclusions of law and in so doing found that it was not true, as alleged in the defendant's answer, that said Goldstein Company delivered said check to the plaintiff *273 for the purpose of cashing the same for or on behalf of said Goldstein Company and paying certain of its debts and obligations, or that the plaintiff received said check as the agent of said corporation for the purpose of paying said or any of its debts or obligations, or that in the presentation of said check for payment the said plaintiff was acting for or as the agent of said corporation; but, on the contrary, the court found that the plaintiff received said check in good faith for a valuable consideration and in due course and was the owner and holder thereof. The court, however, also found that at the time of the making and delivery of said check by the defendant to the Goldstein Company the defendant believed and was of the impression that it was indebted to said Goldstein Company in said sum, but that the fact was that the defendant was then indebted to said Goldstein Company in the sum of but $17.50, and that said check for the sum of said $750 was delivered by it to said Goldstein Company under said mistake of fact and that there was no consideration for said check or for the amount of money named therein or the supposed debt evidenced thereby. The court further found that it was not true, as alleged in defendant's answer, that at the time said Goldstein Company delivered said check to the plaintiff he was informed by it that said check had been issued under a mistake of fact or without consideration, nor was it true that said plaintiff took said check with full or any knowledge of the facts and circumstances or any of them surrounding the execution and delivery of said check by the defendant to the Goldstein Company. As a conclusion of law from the foregoing findings of fact the court found that the plaintiff was the owner and holder of the check in due course for value and in good faith and was entitled to recover from the defendant the full amount of $750, with legal interest from the date of its delivery to him, together with his costs. Judgment was entered accordingly, and it is from such judgment that this appeal has been taken.
The appellant's main contention upon this appeal is that the evidence is insufficient to sustain the finding of the trial court to the effect that the respondent took the check in question for value and not as the agent of the indorser for the purpose of paying certain debts and obligations of the latter out of its proceeds. The contention of the appellant *274 in that regard is that the undisputed evidence shows that the respondent did take the check in question for said purposes and as the agent of its indorser, and hence took the same subject to the defense of lack of consideration which could have been urged against its immediate payee. The evidence thus relied upon is that of the respondent himself, which is in substance as follows: Mr. Ryckman, who was and is an attorney, testified that the check was indorsed and delivered to him by Goldstein Company through its president, Robert Goldstein, who, it was admitted, had authority to indorse and deliver the same. When asked the question, "What was the consideration for this check," he answered: "Professional services rendered and to be rendered in the matter of the United States v. Goldstein then pending in the federal court." Upon cross-examination he was asked the question: "For what other purposes was that check delivered to you besides in payment for your services?" To which he answered: "No other purposes." No other questions were asked upon cross-examination of the plaintiff, who thereupon rested his case. The defendant, in support of its defense, introduced a deposition of the plaintiff taken at its instance during the pendency of the case, wherein the plaintiff in response to the question: "What did you pay for the check?" answered: "It was given to me in consideration of legal services, and to pay certain bills of Goldstein's which he directed me to pay, he being in jail." He further testified: "He requested me to pay at the Hellman Bank two hundred and twenty-five dollars to meet checks that he had issued against that bank that he thought were about due to be presented to the bank, which I did. He directed me to pay twenty-five dollars to get a brief on the historical points involved in 'The Spirit of Seventy-Six' from some competent person and he directed me to pay two hundred and fifty dollars to Blakeley, who is an attorney of Goldstein's in this case of his, upon account of his fees. I deposited the check to my credit in the California Savings Bank and immediately issued checks against it, as directed by Mr. Goldstein." He further replied in response to a question as to what the balance of $250 was to be applied to: "Two hundred and fifty dollars was to be applied to my fees for services rendered and to be rendered." He further testified that the checks which he had issued in payment of the several amounts as requested by Goldstein had all been *275 cashed, with the exception of one, which he had succeeded in stopping payment upon after being notified that payment had been stopped upon the Goldstein check. This constituted all of the evidence in the case upon this point.
[1] The trial court found it sufficient to base its finding upon to the effect that the plaintiff took said check in due course and as a holder for value and that he did not take or hold the same as an agent of the Goldstein Company. We are of the opinion that the foregoing evidence is sufficient to sustain this finding of the trial court. The chief assault which the appellant makes upon this evidence consists in its claim that the reply of the plaintiff to the question as to what was the consideration of said check, that "It was professional services rendered and to be rendered to Mr. Goldstein in the matter of the United States v. Goldstein then pending in the federal court," is a mere conclusion of the witness which is of no weight as evidence and which is entirely overcome and destroyed by his later answer upon the taking of his deposition that in addition he was requested by Mr. Goldstein to pay certain of his outstanding bills and obligations amounting in the aggregate to something like $500. [2] We cannot agree with the appellant's contention in this regard. The original statement of the witness that the consideration of this check was professional services rendered and to be rendered by him was a statement of a fact and not a mere legal conclusion. It was in effect a statement that the witness had rendered and was to render certain valuable professional services to the party delivering said check to him. It was as much a statement of fact as would have been his statement that the consideration of said check was money paid or goods delivered or property transferred. The plaintiff's answer might have been objected to by the defendant as a mere conclusion of the witness and it might have moved to strike it out upon that ground, but no such objection or motion was made. The defendant had also the recourse of subjecting the plaintiff to cross-examination with a view of ascertaining whether the relation of attorney and client actually existed between the parties, or whether any professional services had in fact been or were to be performed, or what, if anything, was their value; but no such inquiry was made by the defendant upon cross-examination, and this being so, we think the *276
response which the plaintiff made in answer to the inquiry as to what was the consideration for the delivery of the check to him is not now open to the objection that it was a more legal conclusion and of no weight or value as evidence. The case ofWinslow v. Glendale L. P. Co.,
The appellant makes the further contention that the check in question, having been made and delivered to Goldstein Company by the defendant on December 19, 1917, and not having been indorsed or delivered by its said payee to the plaintiff until March 7, 1918, the check was a stale check of which the respondent could not be held to be a holder in due course. In support of this contention the appellant cites us to sections
Judgment affirmed.
Richards, J., pro tem., Wilbur, J., Lawlor, J., Waste, J., Sloane, J., Shaw, C. J., and Shurtleff, J., concurred.
Rehearing denied.
In denying a rehearing the court filed the following opinion on March 23, 1922: *279
Addendum
The petition for rehearing is denied.
The question as to whether the check upon which recovery was sought by the plaintiff herein was a stale check so as to destroy its negotiability was not put in issue by the pleadings herein, nor does it appear to have been presented upon the trial, nor was it urged by the appellant until its reply brief was filed. The record herein shows that by stipulation all evidence offered and admitted upon the trial of the cause was omitted from the record upon appeal, excepting only the evidence touching the question as to whether the plaintiff took said check as the agent of the drawee or as a transferee thereof for value. This being so, we are unable to say that there was not sufficient evidence before the trial court to fully explain and excuse the delay in the presentation of said check for payment and to show that such delay was not unreasonable under the particular circumstances of the case.
Richards, J., pro tem., Sloane, J., Shurtleff, J., Lawlor, J., Shaw, C. J., and Wilbur, J., concurred.