94 P. 238 | Cal. | 1907
Lead Opinion
Plaintiff sued for the cancellation and rescission of a bill of sale which he had executed to defendant, and under which defendant had taken possession of the personal property therein described. He prayed that he be restored to the possession of the property and in case possession could not be had, be compensated for the value of the property withheld. The ground of action was that defendant had knowingly taken advantage of plaintiff while the latter was so intoxicated as to be incapable of transacting business, and, under these circumstances, secured his signature to the instrument. It was alleged that the property conveyed was of great value, and that the consideration for the bill of sale was grossly inadequate. The cause was tried before the court without a jury, and the court found the incompetency and incapacity of the plaintiff because of his drunkenness, and found that the property which Swan conveyed to Talbot was of the value of $21,949.86, while the total amount due from Swan to Talbot, including two hundred dollars in coin paid to Swan at the time of the execution of the bill of sale, was but $10,604.32. The court found, moreover, that owing to changes of ownership in the personal property it was impracticable, while decreeing a cancellation of the bill of sale, to further order the restoration of the personal property, and therefore proceeded to give judgment for plaintiff in the sum of $11,345.54, being the difference between the amount of Swan's indebtedness to Talbot and the value of the property which Talbot obtained under the bill of sale. From this judgment and from the order denying defendant's motion for a new trial he prosecutes this appeal.
Before trial defendant moved the court and Hon. Oval Pirkey, judge thereof, that another judge be called in to try *144
the case, and pressed this motion with great vigor. With the same vigor he presses the matter upon this appeal, and a large part of the voluminous briefs is given over to extracts from the affidavits for and against the motion, and to a discussion of the alleged disqualification of the judge. The ground of the motion was the disqualification of the judge by reason of bias against the defendant and certain of his attorneys, together with charges of favoritism toward plaintiff's attorneys. The evidence upon both sides presented has been read and considered. It must suffice to say, without any extended review thereof, which would serve no useful purpose, that the matters charged as facts and susceptible of denial were denied fully and completely by the counter affidavits, and in some instances, at least, the falsity of the charges established. It cannot be said that it was error of the court to have refused the motion, and it is but just to add, in view of the trial court's ruling refusing so to do, that the position of the trial judge situated as was this one must always of necessity be most embarrassing and painful. For, upon the one hand, while it is his duty to grant the motion should bias or other disqualification be shown, yet, upon the other hand, it is equally his duty to deny the motion and to sit in the case himself if, in his judgment, the disqualifying cause alleged is not sufficiently established by the evidence. An added embarrassment under such circumstances arises from the fact that the judge himself is made the trier of the question touching his own bias or other disqualification. But the law has seen fit to impose this painful duty upon him, and he may not shirk its performance. (Higgins v. City of San Diego,
Defendant's general demurrer to the complaint was properly overruled. That demurrer seems to be argued rather upon the proposition that the complaint does not state a cause in equity, than upon the theory that it does not state a cause of action at all, appellant in his argument saying that "It is possible that the complaint . . . may be held to state a cause of action in claim and delivery." Of course, if it states a cause of action addressed either to the legal or equitable side of the court, the pleading is good against a general demurrer. *145
But as the question of the real character of the action arises in other ways upon this appeal, as upon the court's refusal to grant a jury trial, it may here be said that the action is one addressed to the equitable consideration of the court. The instrument in question was not void upon its face, but called for extrinsic proof to show its invalidity. Under such circumstances it is well settled that an action in equity will lie. (3 Pomeroy's Equity Jurisprudence, sec. 1399; Remington Paper Co. v.O'Daugherty,
It is contended that the evidence is insufficient to support the finding of plaintiff's legal incapacity by reason of intoxication. By plaintiff it was shown that he was, and for years had been, a tenant of defendant, farming parts of defendant's lands on shares, and that he had accumulated personal property, farming utensils, stock, interest in growing crops and the like of great value. He was married, and with his wife lived upon one of defendant's ranches. He discovered that his wife was illicitly intimate with defendant, and upon the discovery went to the neighboring town of Willows and undertook to drink away his sorrow. His drinking led to a protracted debauch, lasting several days. Upon the day that the bill of sale was executed, and before its execution, he was so drunk, according to the testimony of several witnesses, that he fell on the streets and had to be helped upstairs, and three hours after the execution of the instrument he was so drunk that he collapsed and was put to bed. He recollected nothing of the transaction. There was thus certainly sufficient evidence in the record to support the finding of the court.
The action is in form of a simple action for a rescission of the bill of sale and the restoration to plaintiff of the property of which defendant took possession under the instrument. As has been said, the court found for a rescission of the instrument, but found also that it was impracticable to decree a restoration and return of the property, and it proceeded thereupon to state and settle an account between the *147
parties. Objection is made to this by the appellant upon the ground that the complaint nowhere asks for such relief. But the proceeding adopted by the court was wholly consonant with the principle that where equity has acquired jurisdiction for one purpose it will retain that jurisdiction to the final adjustment of all differences between the parties arising from the cause of action presented. It is, indeed, the duty of a court of equity, when all the parties to the controversy are before it, to adjust the rights of all and leave nothing open for further litigation.(Ord v. McKee,
For these reasons the judgment and order appealed from are affirmed.
McFarland, J., Sloss, J., Angellotti, J., Shaw, J., and Lorigan, J., concurred.
A petition for a rehearing having been filed, the following opinion was rendered thereon on the 2d of November, 1907.
Addendum
In his petition for a rehearing appellant, with other matters, presses upon the attention of the court the fact that in the judgment given against him he is charged with the sum of $2,591.96, being the amount of a note for two thousand dollars, with interest, executed by one Anderson to plaintiff and by plaintiff deposited as collateral security for his indebtedness to the bank, the payment of which indebtedness defendant had assumed. Petitioner, moreover, shows that there is a direct conflict in the evidence between Swan, the payee, and Anderson, the maker of the note, Swan testifying that it was a note given by Anderson in payment of moneys which plaintiff had from time to time loaned to him, *148 Anderson testifying that it was a mere accommodation note given to Swan to assist him in borrowing money. There is no evidence touching the responsibility of the maker of the note, nor of its value. Under these circumstances, it was inequitable to charge Talbot with the amount of the note and accrued interest. The judgment against Talbot should therefore be modified by subtracting therefrom the amount of the Anderson note with accrued interest.
The judgment heretofore given by this court is set aside, and the following judgment given:
It is ordered that the court below modify the judgment heretofore given by subtracting from the judgment against Talbot the amount of the Anderson note with accrued interest, and that when so modified, the judgment shall stand affirmed. The order denying a new trial is affirmed. Appellant shall recover his costs on this appeal.
