167 P. 285 | Cal. | 1917
This action was originally brought by A.S. Hall as assignee of the substituted plaintiff, A.V. Segno, to recover on several promissory notes and for money loaned. The substituted plaintiff and defendant are husband and wife and the notes were executed by her in his favor and the money loaned by him to her. The defendant did not deny the execution of the notes or their validity, or the making of the loan, but set up a variety of other defenses against recovery upon any of them. The court made findings in favor of the plaintiff on all the notes and the loan sued on and against defendant upon all her defenses. On this appeal defendant questions only the validity of two of the findings in favor of plaintiff. The court found in his favor as to a loan of eight hundred dollars alleged to have been made to defendant on September 22, 1913. It appears that when this loan was made, and at the same time, defendant made a bill of sale in favor of plaintiff of certain personal property consisting of office furniture, books, and papers to secure its repayment, he agreeing to return or cancel the bill of sale on repayment *744
of the money within thirty days. Defendant claims the evidence shows that within the thirty days she tendered to plaintiff the sum of $805 in full payment of the indebtedness and demanded from him a delivery of the bill of sale which he refused; that this constituted a tender or offer of payment extinguishing the eight hundred dollars indebtedness and the court should have so found and held. The contention of the defendant is based on section
Appellant complains because the court failed to give her credit as an offset for $2,459.74, the aggregate amount of twenty-nine notes for small sums given by plaintiff to third persons and taken up by defendant as they became due. There is no doubt but that plaintiff executed the notes, failed to pay them when due, and that they were presented to defendant, who settled with the holders of them. But all this was provided to be done by the defendant in a written contract between the parties. Defendant had agreed to give plaintiff a note for fifty thousand dollars, secured by mortgage, which she did. This note and mortgage represented the purchasing price of a publishing business sold by plaintiff to defendant, and these outstanding twenty-nine notes represented obligations of the plaintiff theretofore given by him to the owners of stock in said publishing company for the purchase price thereof. Contemporaneously with the giving of this note and mortgage a written contract relative to these outstanding notes was made by the parties whereby it was declared that the note and mortgage were given in part to secure payment of said outstanding notes of the plaintiff, the agreement providing that plaintiff should pay them, and that if he did not, then that defendant might pay them, "which payments shall be considered to be and shall be payments upon the note heretofore given" by defendant to plaintiff "for said sum of fifty thousand dollars." Plaintiff being out of the state, defendant took up these notes as they became due and long prior to the commencement of this action. Her claim on the trial was that she had not in fact paid them but had merely purchased them from the holders to assert as a setoff against plaintiff. There is nothing in this claim. While the defendant was not required to pay these notes at all unless she chose to do so, she did pay them, and did so in harmony with the terms of her contract, and they constituted partial payments on her fifty thousand dollar note to plaintiff. The effort now to assert their setoff to the notes in suit here only occurred to the defendant after the bringing of the present action. *746
These are the only points made in the brief of appellant, and as they are entirely without merit, the judgment appealed from is affirmed.
Melvin, J., and Henshaw, J., concurred.
