51 Cal. 219 | Cal. | 1876
The cause was tried by the court without a jury, and findings were expressly waived by the parties. A judgment having been entered for the defendants, the plaintiff appeals from the judgment and from the order denying his motion for a new trial.
If A. P. Holmes and the California Furniture Manufacturing Company took the notes and mortgage, with notice of the plaintiff’s interest, they took them subject to his rights; and when the amount due on the notes was paid to the Manufacturing Company, it became its duty to account to the plaintiff for his proportion of it. We must presume, ■ in support of the judgment and in the absence of findings, that the court decided that Holmes and the Manufacturing Company had notice of the plaintiff’s interest when they took the notes and mortgage. If the court erred in this respect the plaintiff, on his own motion for a new trial, should have specified this as one of the particulars wherein the evidence did not justify the decision. But there was no such specification, and the point cannot be raised for the first time in this Court. The Furniture Manufacturing Company having paid to the plaintiff, as was its duty, his full proportion of the amount collected on the notes and mortgage, it is clear he has no cause of action against the defendants.
Judgment and order affirmed.
Wallace, C. J., not having heard the argument, expressed no opinion.
