Opinion
Department One
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. M. T. Allen, Judge.
COUNSEL:
Jones & Weller, for Appellant.
Frank W. Burnett, for Respondent.
JUDGES: Van Fleet, J. Garoutte, J., and Harrison, J., concurred.
OPINION
VAN FLEET, Judge
Appeal by defendant from the judgment and an order denying a new trial.
The action was to recover from defendant, as indorser, on a certain certificate of deposit. The certificate was in these words:
" No. 5927.
" First National Bank of Helena, Montana.
" (Not subject to check.)
" October 19, 1895.
" G. M. Jones has deposited in this bank ($ 1,000.00) one thousand dollars, payable to the order of self, on return of this certificate twelve months after date with interest at the rate of six per cent per annum for the time specified only. Payable in 6 mo. if desired with interest at 6 per cent. No interest after due.
" No. 70430. GEO. F. COOPER,
" Cashier."
It was indorsed "G. M. Jones." The complaint alleged its presentation, with demand of payment, to the maker, on October 19, 1896; that payment was not made, and that due notice of such demand was given the defendant. The answer alleged that defendant's indorsement to plaintiff was made, on or about March 6, 1896, and was with the understanding and agreement that plaintiff should present the certificate to the maker for payment at the end of six months from its date; that at the last-mentioned date the maker thereof was in a flourishing condition and meeting all its obligations as they matured, and that had the paper been then presented it would have been promptly paid; that it was the duty of plaintiff by reason of said agreement to make demand at said date, and by its failure to do so it had assumed all future risks of collection.
The court found the facts alleged in the complaint to be true and those stated in the answer untrue; and gave judgment for the plaintiff.
Appellant's main contention seems to be in effect, although not so stated in terms, that the finding against his special defense is not in accord with the evidence. We regard the evidence as substantially conflicting as to the making of any such agreement as that set up in the answer. But if this were otherwise, appellant is not in a position to assail the finding upon this issue, [53 P. 355] since the record contains no specification attacking it. There is but one specification in the record, and that is directed in express terms to the first finding, which refers solely to the averments of the complaint.
But, moreover, the evidence offered by defendant in support of his defense was not competent to establish it, and that objection was made -- the court, however, permitting it to go in subject to the objection and reserving its ruling. The evidence simply tended to show a verbal understanding, if any, had at the time of the transfer of the certificate to plaintiff, that the latter would present it at the end of the six months; but whether this understanding was had prior to the indorsement and delivery of the paper or subsequent thereto, defendant could not state. Manifestly, however, whether before or after, in either event the evidence was wholly inadmissible. If made before indorsement, all negotiations were merged in the writing; if made subsequently, it was without consideration and void. The contract between the indorser and indorsee of a negotiable instrument is a written one, and cannot be varied or changed by parol evidence of a verbal promise or agreement made at the time of the indorsement. (Goldman v. Davis , 23 Cal. 256.) The court below having reserved its ruling upon this evidence until final submission, its subsequent finding against appellant upon the issue to which the evidence was directed was in effect a ruling excluding the evidence; and the case may be regarded as though no evidence had been offered by defendant in support of his answer.
The further proposition apparently advanced that the instrument was by its terms due at the end of six months, and that plaintiff was bound to present it at that time in order to hold the indorser, is not tenable. The paper did not by its terms mature until October 19, 1896. The stipulation therein that it would be paid at the end of six months "if desired" was an option solely for the benefit of the payee, to be availed of at his election. (Belloc v. Davis , 38 Cal. 255.) And the instrument being negotiable this privilege passed to the indorsee.
The judgment and order are affirmed.