Opinion
Commissioners’ decision. Department 1. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.
Action by Louisa P. Love against the Anchor Raisin Vineyard Company, a corporation. Judgment for plaintiff. Defendant appeals. Affirmed.
[5 Cal.Unrep. 426] C. F. Hanlon, for appellant.
Thos. A. McGowan, for respondent.
OPINION
SEARLS, C.
This is an action to recover upon a promissory note, made by the corporation defendant August 4, 1892, for $6,261.29, payable one day after date to the order of John Conly, in gold coin, with interest at 8 per cent. per annum, and indorsed by the payee thereof to plaintiff. Plaintiff had a verdict for $5,532.38, upon which verdict judgment was entered. Defendant appeals from the judgment, and from an order denying its motion for a new trial.
The evidence embodied in the statement on motion for a new trial shows that the note was indorsed to the plaintiff herein after maturity, viz. on October 4, 1893. Plaintiff, in her complaint, admitted the payment of certain sums of money to Conly on account of the note, and at the trial it was shown and admitted that those payments amounted to $1,687.55. They were indorsed upon the note, and tallied with a ledger account of defendant in evidence, in which, under bills payable, the note was entered as a liability in favor of the payee, Conly, and the several payments credited to defendant in said account on account of money, etc., paid to said Conly. This is all plain and simple, and the verdict of the jury is founded on this basis. Defendant, however, produced another account, kept with Conly personally, in which he stands charged with a balance of, say, $2,667.80, which defendant claims should have been deducted from the balance due on the note, thus reducing the verdict by that amount. We will refer hereafter to this individual account [5 Cal.Unrep. 427] with Conly, and to the circumstances which probably actuated the jury in concluding that it was not entitled to be treated as a payment on the note.
Upon the close of the testimony the court instructed the jury, in part, as follows: ‘Gentlemen of the Jury: This is a question of accounting and bookkeeping. You have heard the evidence in this case, and you will have to ascertain from it, as best you can, the amount of money that is due to the plaintiff here. That the defendant owes the plaintiff is admitted by the defendant; but the question is, how much? The defendant claims that the amount claimed by the plaintiff is excessive, and that it is entitled to certain credits thereon, in consequence of demands which they had as against John Conly, who was the payee of the note transferred to the plaintiff. If you should find from the evidence that any of these items which counsel have called to your attention were designed and intended at the time to have been payments on account, or to the credit of the note, and that such items were agreed upon and determined before the date of the indorsement of the note to the plaintiff, which was October 4, 1893, they would be entitled to have them credited upon the amount due upon the note,— principal and interest. If you should conclude that they are not entitled to any of these credits, then it would be your simple duty to ascertain the amount of principal and interest due, after deducting the amount of the cash payments which are contained on the back of the note.’ The propriety of this instruction depended upon the evidence in the case. That evidence tended to show: (1) That from the formation of the corporation up to, say, December, 1893, John Conly was president, director, general manager, and a large stockholder of the defendant. (2) That during 1892 and 1893 A. S. Neal was secretary of the corporation defendant. (3) That John Conly, the president, had advanced money to the corporation until on August 4, 1892, the corporation was indebted to him in the sum of $6,261.29, for which sum the note in question was given, and the account balanced upon the corporation books; the note being entered in the account of bills payable, and the sums as credited on the back of the note being charged in said last mentioned account. (4) Plaintiff, being aware that the note was overdue, and hence that any payments thereon were liable to be offset against the note, on or about the date of the [5 Cal.Unrep. 428] transfer to her, and before such transfer, applied, through her husband, James Love, to A. S. Neal, the secretary of the defendant, to know if the indorsements on the note constituted all the offsets thereto, and was informed that they did, except that there might be one or two small payments not indorsed; that the amount due was about $5,000; that he and Conly had compared it recently, and found it exact. Two payments, aggregating $250, were not then on the note, but were indorsed thereon subsequently. (5) Defendant had notice of the transfer of the note to plaintiff on the 4th or 5th of October, 1893. (6) The individual account of Conly with defendant on the 4th day of October, 1893, the date of the assignment of the note to plaintiff, showed a balance in favor of said Conly amounting to some $1,143.86. This balance occurred in this wise: Some time in 1892 a resolution was passed by the directors of defendant allowing Conly a salary of $100 per month, as general manager, from the organization of the company, which salary on the 31st day of July, 1893, aggregated $3,416.66, which sum was placed to his credit in the books of the company. After the transfer of the note to plaintiff, and on the 15th day of October, 1893, the directors of defendant, with the consent of Conly, passed a resolution rescinding the resolution to allow said Conly a salary of $100 per month, and the sum of $3,466.16 so standing to his credit was charged back to him; thus leaving a balance in favor of the corporation, which, together with $420 charged him in December, 1893, on account of two assessments, aggregated $2,119.80. The reasons given by defendant for the rescission of the resolution allowing a salary to Conly were: (1) That there was an understanding with the stockholders of defendant that all of its officers should serve without pay. (2) That the resolution allowing the salary was passed when but three directors were present. It does not appear, so far as we have discovered, of how many directors the board consisted. The minute book of defendant was missing, and was claimed to have been lost. Under these circumstances, we are not surprised that the jury failed to credit defendant with the balance thus shown in its favor. It looked too much like an effort, after the transfer of the note, to saddle upon the plaintiff an offset not justly chargeable to her, and which defendant had not intended to so charge until after the [5 Cal.Unrep. 429] transfer of the note. In view of the testimony, the instruction of the court to the jury was proper.
We have thus stated in a general way the tenor of the evidence, and its sufficiency to support the verdict. In strictness, however, the specifications of the insufficiency of such evidence, as contained in the statement on motion for a new trial, are so indefinite that they might well have been disregarded. There are some eleven specifications in reference to the evidence. One will serve as a sample of all the others: ‘(1) That the evidence clearly showed that the total amount due by defendant to plaintiff on the date thereof was not the sum of $5,532.38, but was the sum of $2,520.48, and no larger or greater sum whatsoever.’ This form of specification is clearly insufficient. Adams v. Helbing, 107 Cal. 298, 40 P. 422; Moore v. Moore (Cal.) 34 P. 90; Spotts v. Hanley, 85 Cal. 165, 24 P. 738; Eddelbuttel v. Durrell, 55 Cal. 279; Hayne, New Trials, § 150; Parker v. Reay, 76 Cal. 105, 18 P. 124.
The second point made by appellant for reversal is that the defendant had no notice of the transfer of the note until suit brought. The learned counsel overlooks the testimony of James Love, who testifies that he notified Neal, the secretary, bookkeeper, and a director of defendant, of the transfer of the note to plaintiff on the 4th or 5th of October, 1893, immediately after the taking of the note. This was a sufficient notice. Thomp. Corp. § 5195.
We think the court erred in admitting the declaration of Conly that there was $5,000 due upon the note at the date of its transfer to the plaintiff. It is true that he was president of the corporation defendant, and, under ordinary circumstances, his admission would bind the defendant, made within the scope of his authority. But as payee of the note, about to make a sale of it, his interests were antagonistic to defendant, and his declarations would not be binding upon the defendant. We are of opinion, however, that this error does not call for a reversal. The note showed for itself what was due, after deducting the indorsements. Defendant’s secretary testified that there was due on the note October 4, 1893, the sum of, say, $4,603.53, without interest, and the interest up to that date was some $517.33; thus bringing the amount up to, say, $5,091.27. Defendant’s books showed the same thing, and the only question really in dispute was [5 Cal.Unrep. 430] as to the right of defendant, under the circumstances hereinbefore stated, to offset the individual demand against Conly. Plaintiff’s calculation showing the amount due on the note, and defendant’s claim for the amount of its demand against Conly, were not only admitted in evidence without objection, but both of them were, by consent of counsel, submitted to the jury for their consideration. Under these circumstances, the error complained of was harmless. Burnett v. Lyford, 93 Cal. 115, 28 P. 855; Silvarer v. Hansen, 77 Cal. 584, 20 P. 136; Duffy v. Duffy, 104 Cal. 605, 38 P. 443.
We need not again refer to the charge given by the court, upon its own motion, to the jury, or to the strictures thereon, for the reason that the only exception thereto is as follows: ‘To which said charge, and the whole thereof, defendant then and there duly excepted.’ This was general, and not sufficiently specific to call the attention of the court to the portions thereof now assailed. Rogers v. Mahoney, 62 Cal. 611; Frost v. Creamery Co., 102 Cal. 525, 36 P. 929; Moore v. Moore (Cal.) 34 P. 91; Cockrill v. Hall, 76 Cal. 192, 18 P. 318; Sukeforth v. Lord, 87 Cal. 399, 25 P. 497. Upon the whole case, as presented, we recommend that the judgment and order appealed from be affirmed.
We concur: HAYNES, C.; BRITT, C.
PER CURIAM.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.