Opinion
Department Two
Hearing in Bank denied.
Appeal from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.
COUNSEL:
D. S. Terry, and J. H. Budd, for Appellant.
J. B. Hall, and W. L. Dudley, for Respondent.
JUDGES: Foote, C. Belcher, C. C., and Hayne, C., concurred.
OPINION
FOOTE, Judge
A decision in this case was heretofore made by this court, and the opinion then filed is to be found in 65 Cal. 247.
A comparison of the record as it then stood, and of the one now under consideration, shows that there is no question now presented for determination which was not then brought to its attention, and passed upon by this court, except those which will hereafter be noticed.
It is evident, therefore, that the law of this case, save with reference to the new points now advanced, has been settled.
" Defendant was rightly held liable by the court below for the amount of the De Blainville indebtedness." (65 Cal. 247.)
The sole ground for the reversal and the awarding of a new trial, then, was that a part of the judgment against the defendant was for an alleged over-draft, for and on account of his salary as cashier, for which reason the judgment was held to be erroneous. This ground for a reversal does not now appear.
The errors of law claimed to have been made by the trial court, which were not alleged to have been committed when the case was here before, are:
1. That an objection on the part of the plaintiff was sustained to this question: "And all the way through while that house was doing a banking business, there were cash tags, as you call them, from a few hundred dollars to eight or nine thousand dollars?" This question referred to a general custom or practice which had prevailed in the banking-house of Bours & Co., an institution other than the plaintiff. And the defendant was allowed to testify fully as to the custom, so that no damage was done him in any event; in fact, the appellant's brief seems to assume that such a custom was fully proved both as to Bours & Co. and plaintiff.
2. It is further contended that one or more of the findings are unwarranted, either because of there being no evidence to support them, or because the count or counts of the complaint upon which such findings were made were abandoned by the plaintiff. All the findings are either sustained by sufficient evidence pertinent to such of the issues made by the pleadings as were not abandoned, or they were based upon a count the allegations of which were not denied by the answer.
There is no prejudicial error, and the judgment and order should be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are affirmed.