Stone v. Gray

103 P. 155 | Cal. Ct. App. | 1909

This is an appeal from a judgment in favor of plaintiff for the sum of $1,236.54.

The complaint is in two counts. The first count charges upon a promissory note executed by defendants to plaintiff's. assignor, Union Machine Company (a corporation), for the principal sum of $1,000, with interest at seven per cent per annum from its date January 28, 1906.

Prior to the conflagration of April, 1906, the note had been transferred to and left with the Germania National Bank for collection only, for account of the Union Machine Company, and was destroyed by said co-conflagration while in possession of the bank. Plaintiff, over the objection and exception of defendant, put in evidence an assignment of said note from said bank to the Union Machine Company. This assignment was under the seal of the corporation bank, and was signed by the vice-president and cashier. The objection to its introduction was that it was not shown that the officers signing on behalf of the bank had authority to assign the note. This objection was utterly without merit. The vice-president of the bank testified without objection that he and the cashier had such authority — and the seal of the corporation was itself primafacie evidence that the officers executing the instrument were duly authorized, and the execution thereof the act of the corporation. (10 Cyc. 944; Bullin v. Milwaukee Trading Co.,109 Wis. 41, [85 N.W. 115]; McCracken v. City and County of SanFrancisco, 16 Cal. 639; Gutzeil v. Pennie, 95 Cal. 598, [30 P. 836]; Angell Ames on Corporations, sec. 224.)

The only other point relates to the sufficiency of the indemnity bond offered by plaintiff, the holder of the note.

This instrument was executed by plaintiff and two sureties, who were admitted to be financially good. The only objection to the bond is that it did not fix a penal sum. The principal and the two sureties in said bond jointly and severally agreed to indemnify defendants against any lawful claims upon said note. This fully complied with the statute. (Civ. Code, sec. 3137) Under this bond the parties executing it would be liable in any amount, and in this respect the bond was more favorable to the defendants than would have been a bond in which the liability could not exceed the amount fixed as the penal sum. The statute does not give the form of the bond. It simply provides that, "If the instrument be lost or destroyed, then that the holder give to him a bond, executed by himself and two sufficient sureties) to indemnify him against any lawful claim thereon."

The bond in question fully met the requirements of the statute. It was given by the holder of the note, with two sufficient sureties. The objection that the original payee gave no bond is without merit. The statute does not require the original payee to give a bond unless he be the holder at the time of payment.

No other errors are claimed, and the findings are in no respect challenged.

The judgment is affirmed.

Cooper, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 14, 1909.