71 Cal. 142 | Cal. | 1886
Action upon a promissory note and to foreclose a chattel mortgage.
The original complaint was filed August 2, 1880, and the amended complaint August 10, 1882. In both complaints is set forth a copy of the note, and attached to them is a copy of the mortgage. The note is dated March 1, 1878, and is payable on demand with interest; the mortgage is dated June 1, 1878. In the mortgage the note is correctly described, except that its date is given as February 8, 1878.
In the amended complaint it is alleged that the mortgage was made to secure the note sued on; that at the time the mortgage was prepared, signed, and delivered,
The answer raised no issue as to the fact that the mortgage was given to secure the note set out in the complaint, but it denied that at the time the mortgage was prepared, signed, and delivered, the plaintiff did not have the note with him, or that either the plaintiff or defendant, by accident or mistake, directed the notary to describe the note as bearing date February 8, 1878, or that the defendant ever at all so directed the notary or any one else. It further denied that the plaintiff did not discover the mistake until January, 1882, and alleged that since the note and mortgage were made and delivered to plaintiff, he had had possession of them, and “that continuously since the occurrence of said mistake the plaintiff has had all the means necessary for discovering the same within his power, and has had every reasonable cause to put him upon inquiry as to the same.”
The answer then alleged that the cause of action for the reformation of the mortgage was barred by the provisions of subdivision 4, section 338, of the Code of Civil Procedure.
The defendant also, by way of cross-complaint, set up, that in 1874 the plaintiff was engaged in the business of cleaning and dyeing in the city of San Francisco, under the name of “John F. Snow, Cleaning and Dyeing Works”; that the defendant purchased of the plaintiff a half-interest in his said business, including the one half of all property then owned and used by plaintiff in his said
The prayer is, that plaintiff take nothing by his action; that the note and mortgage be decreed to be fully paid, satisfied, and discharged, and that defendant have judgment for his costs.
The plaintiff answered the cross-complaint, admitting some of its averments to be true and denying others.
At the trial the plaintiff called witnesses to prove the mistake made in the date of the note, as it is described in the mortgage, and how it occurred, and also that he
Counsel for defendant then called defendant as a witness in his own behalf, and offered to prove by him each and every one of the allegations and denials contained in his answer and cross-complaint. Counsel for plaintiff objected to the testimony offered, upon the ground that it was irrelevant, incompetent, and immaterial. The court sustained the objection, and the defendant reserved an exception to the ruling. Judgment was then entered in favor of the plaintiff. The appeal is from the judgment and an order denying a new trial.
Two points are made for the appellant. The first is, that the mortgage could not be foreclosed until after it was reformed, and that the action, so far as it concerned the reformation of the mortgage, was barred, because the amended complaint was not filed till more than three years after the plaintiff knew or might have known of the mistake.
The point is not well taken.
The note was correctly described in the mortgage, except as to its date, and no question was made that the note produced was the one referred to and intended to be secured. If the date had been entirely omitted from the description, the mortgage would still have been good, and might have been foreclosed.
It was a case of misdescription in part, and the maxim, Falsa demonstrate non nocet, applies.
In Massachusetts, where a statute referred to a vote of a town by a wrong date, it was held that the date might be rejected as surplusage, the reference being clear without it. (Shrewsbury v. Boylston, 1 Pick. 105.)
So where property was insured in a warehouse, described in the policy as No 1. when in fact it was No. 2, it was held by this court that the false description might be rejected, as the remaining description of
As the mistake was immaterial, it was not necessary that the mortgage be reformed, and the statute invoked had therefore no application.
The second point presented is, that the court erred in refusing to hear testimony in support of the allegations of the cross-complaint.
To this the respondent answers that there was no error, because the cross-complaint was uncertain and insufficient as a pleading, and demanded no affirmative relief.
The cross-complaint doubtless might have been improved in some respects, but it was answered and not demurred to. As we read it, it in effect sets forth that the defendant purchased from the plaintiff, with certain tangible property, the good-will of a business, and gave the promissory note sued on for a part of the purchase-money; that the plaintiff had afterward willfully proceeded to draw off the defendant’s customers, and to deprive him to a large extent of the good-will so purchased, and had thereby damaged him in a sum greater than the amount remaining due on the note; and the defendant asked, therefore, that it he held that the note was fully paid, satisfied, and discharged.
The good-will of a business is the expectation of continued public patronage, and is property transferable like any other property. (Civ. Code, secs. 992, 993.)
“ One who sells the good-will of a business thereby warrants that he will not endeavor to draw off any of the customers.” (Civ. Code, sec. 1776.)
' If the plaintiff did endeavor to draw off customers from the defendant, and succeeded in so doing, as alleged, there was a breach of the warranty which attended the sale of the good-will of the business, and the plaintiff became liable therefor in damages. And to recover those damages it was not necessary, as claimed, that the con
Under this rule the defendant was entitled to have the damages sustained by him offset against the purchase-money, which the plaintiff was seeking to recover. The relief sought was affirmative, and it related to or depended upon the contract or transaction upon which the action was brought. (Code Civ. Proc., sec. 442.)
As presented, we think the pleadings were sufficient, and that the court erred in refusing to hear the testimony offered by the defendant.
The judgment and order should be reversed, and the cause remanded for a new trial.
Foote, C., and Searls, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial.