48 P. 1092 | Cal. | 1897
This action is upon a promissory note alleged to have been made and delivered by the defendant' to the plaintiff on August 8, 1890, for the sum of $3,000, payable one year after date, with interest at seven per cent. The answer denies that defendant made, signed or delivered said note. The pleadings are verified. A jury trial was had, and resulted in a verdict for- the plaintiff, upon which judgment was entered. This appeal is from an order denying defendant’s motion for a new trial.
The specifications upon which the motion for new trial was heard are: (1) Insufficiency of the evidence to justify the verdict; (2) errors in ruling upon questions of evidence; and (3) that the court erred in giving certain instructions to the jury, and in refusing to give other instructions requested by defendant.
1. The. sole question at issue upon the pleadings was whether the defendant made the note sued upon, and upon that question the evidence was conflicting. The plaintiff testified that he saw the defendant sign the note, and that, immediately after it was signed, the defendant delivered it to him; that it was made and delivered in the private office of Taggart & Bosch, no one else being present; that it was made and delivered August 8, 1890, the day of its date; that it was given in part consideration for the sale of an undivided one-sixth interest in an antimony mine to the defendant, the whole consideration of which was $3,250, viz., the note in suit for $3,000, and $250 in money, paid a few days after the sale; and that one J. K. Patton was equally interested with him in the. mine, and in the sale of said interest. The defendant testified as positively that he did not give the plaintiff said note; that he did not sign it; that the signature thereto is not his; that he first heard of said note sometime in the fall of 1891, after this suit was commenced, while he was in Leipsic, in Germany, and first saw it after his return from Europe, sometime in June, 1892. If we° ended our recital of the evidence at this point, it would certainly appear that there was a material conflict. Experts were called by the plaintiff, who testified, from a comparison
2. Appellant contends that the court erred in certain rulings during the trial. Plaintiff and defendant were co-partners in the wine and liquor business from August, 1887, to November 25, 1890. On August 8th, defendant purchased said interest in said mine, and on that day the plaintiff and his co-owner of the mine, J. K. Patton, executed and acknowledged a deed to the defendant for said interest, both the grantors acknowledging its execution at the same time before the same notary in Los Angeles (where plaintiff and defendant had their place of business) on the same day said promissory note is claimed by the plaintiff to have been made by the defendant. Said mine is situated, as appears from the deed, in San Bernardino county; and Patton, who had been for some years associated with the plaintiff in mining enterprises, was the mining man, and attended to that part of the business, and was much of the time, perhaps, usually, put of town. The execution and acknowledgment of the deed, however, showed that he was in town the day the note was made, if made at all, and the plaintiff testified that he and Patton went together to the notary, and acknowledged it, and that he did not then inform Patton that he had sold said interest for $3,250, or that he received or
The further question is therefore presented, viz.: Does it appear from the record that the defendant was not injured by the restrictions imposed upon the defendant in his cross-examination of the plaintiff? The case is peculiar, at least
It is contended, however, by the learned counsel for respondent that the facts called for by the questions which were disallowed were subsequently disclosed in evidence, or were unimportant and immaterial and harmless, and that, therefore, the defendant was not prejudiced. The location of the Blue Jay mine was shown by the deed, but the questions, “How soon after this sale did you see him?” and, “When did you next see Mr. Patton?” were not answered, nor the facts called for disclosed. The plaintiff testified that Patton went with him to acknowledge the deed, but “couldn’t say whether this was before or after the giving of the note. It was about the same day.” He further testified that he did not tell Patton about the note that day, but did tell him some time after; that it might have been a week or two or three months; and that he may have testified before that it was in November. It also appeared that Patton was in charge of the mines out on the desert, and it might be that plaintiff did not see him until November, and that he told him the first time he saw him. But it might be the case that he saw him the next day or the next week after the date of the note, or every day or every week from that time
But other facts disclosed in the testimony show still more clearly the materiality and importance of these questions. The plaintiff and defendant were partners in the liquor business at the time of this transaction, and had been for three years preceding. On November 25, 1890, about three and one-half months after defendant bought said interest in the mine, defendant sold his interest in the firm of Taggart & Bosch to the plaintiff for $6,500, of which the plaintiff paid $5,000 in cash, and gave defendant his two several promissory notes—one for $1,000, payable January 1, 1892, and the other for $500, due July 1, 1892. The cash payment' was made by plaintiff’s check on the First National Bank of Los Angeles. In order to make the cash payment, plaintiff borrowed $4,000 -from said bank, and, when negotiating the loan, exhibited the note here in suit to the cashier as one of the securities he had on hand, and, so far as appears, said cashier, Mr. Shaffer, is the first person, aside from
We need not enlarge upon the rulings made upon the questions put to the plaintiff as to whether he told the bookkeeper about the note, and whether private accounts were kept between plaintiff and defendant. They were neither so remote nor related to matters so improbable as to justify their exclusion. The general effect of these rulings was to improperly restrict the cross-examination of the plaintiff. We are not authorized to infer that, if these questions had been permitted, the cross-examinations upon those lines would have stopped with the answers to them, but that it would have been pursued so long as the answers would indi
We have not space to discuss the remaining evidence in detail, but a brief reference to some of it must suffice. The deposition of Patton was taken and read by the defendant. He testified that he did not recollect what the price was. He was then asked: “Didn’t you tell me the other day what he paid? A. Well, I told you, I think, it was $250, and Bosch told me $350, and I told him I forgot all about what it was. Q. When Bosch told you $350, he meant a hundred dollars that was sent for assessment work? A. It was all put back in the mine. It was all put in the mine, including the assessment money. Q. You are quite positive it was not over $350? A. As my understanding was, I don’t, no.” As to what the witness meant by his last answer we will not speculate. He further testified that he first heard of the note “the next time after I saw Mr. Taggart.” He could not say how many months after, nor whether Mr. Bosch had gone to Europe, nor whether it was after Bosch had sold out to Taggart, nor whether it was five months or five days. Mrs. Bosch and T. R. Bennington testified in substance that plaintiff told each separately that he sold said interest in the mine to Bosch for .$250, and Charles Kohler testified that plaintiff told him he had sold Bosch said interest for $250, and offered to sell him another one-sixth for $350. Plaintiff denied having told either of said witnesses that he sold said interest to Bosch for $250, and that he had no recollection of offering Kohler any interest in the mine for $350, or for any sum. Some circumstances were also shown upon
3. No exceptions appear to have been taken to the instructions given, nor to the refusal of the court to give those requested by the defendant, and they cannot therefore be considered. We advise that the order appealed from be reversed and a new trial granted.
We concur: Searls, C.; Belcher, C.
For the reasons given in the foregoing opinion the order appealed from is reversed and a new trial granted.