78 Cal. 221 | Cal. | 1889
On January 26, 1888, plaintiff and defendant, IT. C. Shulz, who had prior and up to that time been engaged jointly in certain mining enterprises, met and adjusted their accounts. Plaintiff asserted that the sum of $3,920.67 was due to him, and wanted a note payable one day after date. Defendants were unwilling to give a note payable in so short a time, but, relying on his statement, executed and delivered to him their promissory note for the sum claimed, payable in six months
“ That the defendants .... demanded from plaintiff ' the surrender to them of said note, and tendered to plaintiff in lieu thereof their promissory note for the sum of $3,870.67, bearing date January 26, 1888, and made payable six months after date.....That the plaintiff refuses, and has ever since continued to refuse, to surrender the note executed by defendants on January 28th, and has ever since-continued to reject the defendants’ tender.”
Upon these facts, judgment was entered for defendants.
The facts found by the court are supported by the evidence, and we think the judgment is right. Plaintiff had been for ten years a partner of H. 0., had lived in defendants’ family five years, and had gained their friendship and confidence. Defendant H. 0., who was suffering from cataract of the eye, could not read the note written by plaintiff; his wife was busy; both signed the note, relying on the positive and repeated assurance of plaintiff that the note was in all respects the same as the original, except as to the amount named therein.
Appellant whistles these facts down the wind, saying that “ it does not appear therefrom that any relation of especial trust or confidence existed between the parties, or that defendants did not have full and equal opportunity with plaintiff to acquire knowledge of the contents of the note,” etc. But the court finds, upon ample evidence, that the plaintiff intended to deceive defendants, and that they were in fact deceived by his statements as to the contents of the note.
Where a party is induced to sign an instrument by false statements as to its contents, made with intent to mislead him, and to prevent him from making an ex
Defendants in their answer and at the trial tendered to plaintiff a note which in form was the same as the note plaintiff represented to them they were signing on January 28, 1888. This was more than the law required of them. (1 Daniel on Negotiable Instruments, secs. 193, 848.)
The answer of defendants contains a full and completé defense. (Capuro v. Builders’ Ins. Co., 39 Cal. 125.) At the trial, no objection was made that the testimony offered by defendants was not within the issues. Judgment and order affirmed.
Thornton, J., Beatty, C. J., Works, J., McFarland, J., and Sharpstein, J., concurred.