56 Cal. 493 | Cal. | 1880
Lead Opinion
The Court below found, in substance, that the defendants were jointly indebted to the plaintiff by a promissory note which was then due and payable at the Commercial Bank of Los Angeles; that they verbally agreed with the plaintiff to take up his note in the following manner, viz.: Bicknell engaged to pay one-fourth of the principal and interest due upon the note, and Hamilton to pay the other three-fourths of the note by giving to the plaintiff his individual promissory note, secured by mortgage upon real estate in the city of Los Angeles. This the plaintiff verbally agreed to accept in satisfaction of their joint note.
Bicknell performed his part of this verbal agreement by paying into the Commercial Bank one-fourth of the principal and interest of the note, and the same was credited by the cashier of the bank upon the note. Hamilton executed his promissory note for the balance of the joint note; and to secure its pay-, ment, he and his wife executed a mortgage upon their homestead property. This note and mortgage Hamilton offered to deliver to the plaintiff, and demanded a surrender of the joint note of himself and Bicknell. But the mortgage was not satisfactory to the plaintiff, and he refused to accept Hamilton’s note or the mortgage, or to surrender the joint note, and soon afterwards he brought this action. Upon these facts, the Court below decided, as a conclusion of law, that the plaintiff was entitled to judgment upon the note in action against the defendant Hamilton, but was not against the defendant Bicknell.
How, the verbal agreement which was averred in the answer, and which was found by the Court, was never executed by the defendants. It was performed in part by the defendant. Bicknell ; but part performance of a verbal agreement by one or two joint debtors is not an execution by both; and an unexecuted agreement does not extinguish the obligation of joint debtors, unless it has been expressly accepted by the creditor, or he has agreed in writing to accept it, in satisfaction of the obligation. (§§ 1523, 1524, Civ. Code.) Therefore, that portion of the answer of defendant Bicknell which contained the alleged defense of accord and satisfaction should have been disregarded. The conclusion of law founded upon it was erroneous. (Bosquett v. Crane, 51 Cal. 501.) Instead of drawing such a conclusion, the Court should have decided that there was no accord and satisfaction; that the obligation of the defendants had not been extinguished by the unexecuted verbal agreement of the parties; and that the plaintiff was entitled to judgment against both the defendants. Having erred in its conclusion of law, and in giving judgment for the defendant Bicknell, the Court did not afterwards err in granting a new trial upon the ground that it had erred in its conclusion of law.
When a Court draws erroneous conclusions of law from its finding of facts, it is a decision against law, for which a new trial should be granted under subdivision 6 of § 657 of the Code of Civil Procedure. (Bosquett v. Crane, supra; Martin v. Matfield, 49 Cal. 42.) The terms “ verdict and decision,” as used in the subdivision of the section referred to, are appositional—what is predicated of one is also of the other. A verdict is the decision of a jury reported to the Court on matters
Upon the facts found, whether found by the finding of a Court or the report of a referee, or. the special verdict of a jury, the Court must decide the law of the facts before ordering judgment; and if its decision is contrary to or inconsistent with the pleadings in the case, or is in any respect contrary to law, a new trial should be granted. (Tevis v. Hicks, 41 Cal. 123; Emerson v. Santa Clara County, 40 id. 543.)
Order granting a new trial affirmed.
Thornton, J., concurred.
Concurrence Opinion
I concur in the affirmance of' the order granting a new trial. The Court permitted the defendant Bicknell, against the plaintiff’s objection, to testify to a verbal agreement which constituted no defense to the action upon the note. As stated in the transcript, “ Counsel for the plaintiff at this point objected to the witness testifying to a parol contract subsequent to the note and varying the effect thereof. The objection was overruled, and plaintiff excepted.”
If the objection had been based upon the ground that evidence of the parol contract would be immaterial or irrelevant, I do not think that the ruling of the Court could be sustained. And it seems to me, that the ground stated is substantially to that effect; i. e., that such an agreement would not affect the
McKinstiíy, J., and Myiíick, J., concurred in the opinion of SlIAUPSTEIN, J.
Dissenting Opinion
I agree to the proposition first announced in the opinion of Mr. Justice McKee ; but I am unable to agree to the proposition that where, as in this case, all of the issues of fact raised by the pleadings are found upon by the Court, and the findings are sustained by the evidence, as is expressly stated by the Court below, an erroneous judgment drawn from those facts can be corrected by means of a motion for a new trial.
The authorities cited in the opinion, in support of the proposition that this can be done, are Bosquett v. Crane, 51 Cal. 505; Tevis v. Hicks, 41 id. 123; Emerson v. Santa Clara County, 40 id. 543; and Martin v. Matfield, 49 id. 42. I am unable to see that the first three of these cases have any bearing on the point at all; and the last one, Martin v. Matfield, so far as it applies, is, as I read it, directly the other way. Thus say the Court in the opinion delivered by Mr. Chief Justice Wallace: “ The insufficiency of the evidence to justify the judgment is not a ground of motion for a new trial. Such a motion is not directed at the judgment, but at the verdict, or other decision of fyet, for a new trial is a re-examination of an issue of fact.
These views are supported by the cases of Jenkins v. Frink, 30 Cal. 586; Shepard v. McNeil, 38 id. 74; and Thompson v. Hancock, 51 id. 110.
Indeed, I cannot see how it can be otherwise under the statute. Since a new trial is “ a re-examination of an issue of fact,” where, as here, all such issues are correctly found upon, 1 am unable to find any authority for “a re-examination” of such facts; in other words, for a new trial, or to see any necessity therefor. As said by Mr. Justice Rhodes, in Martin v. Matfield, supra, the Code has provided other and sufficient modes for the correction of such errors as were complained of in this case. .
Hor can I see that the Court below erred in admitting the testimony of Bicknell, for it was responsive to and tended to prove the matters set up in the answer. That these matters did not, in law, constitute a defense to the action could have been taken advantage of by the plaintiff, by a motion for judgment on the pleadings, and subsequently by an appeal from the judgment, and perhaps by a motion in the Court below for judgment on the findings in his favor. But for the reasons already given, the error could not, in my opinion, be corrected on a motion for a new trial.
I therefore dissent.
