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no argument in support of the judgment. The case pre sented, therefore, is one in which all the evidence and the only evidence sustains the allegations of the complaint that the note was unpaid. The judgment, therefore, must be reversed.

In the second case Adolph Thomas sued John Newton on a common count for money for services rendered in the sum of $3,939.49. An amendment to the complaint was filed setting up a second cause of action in which it was alleged that on the nineteenth day of June, 1919, this plaintiff and the defendant entered into an agreement of copartnership for the conduct of a business in the city and county of San Francisco wherein they agreed to participate in the profits of said business, share and share alike. The prayer followed for an accounting of said partnership and the recovery of the amount found to be due from the defendant. The trial court found that these allegations of the complaint and the amendment thereto were not true and rendered judgment in favor of the defendant. As in the other case, the appeal is based upon the ground that the evidence is insufficient to support these findings.

The appellant testified, and on this appeal respondent concedes, that on April 15, 1918, the appellant entered into the employment of the respondent as a salesman or solicitor for him on the agreement that he was to receive as compensation therefor the sum of $15 per week, which was to cover the first $200 worth of business procured by him each week, together with a commission of five per cent on all further business procured by him, and expenses. The appellant testified that this agreement terminated about June 19, 1919, and the partnership agreement was thereupon made. Respondent contends that no partnership was formed, but that the appellant continued in the employ of the respondent under the agreement of April 15, 1918, until July 20, 1920. The only evidence on the question of the formation of the partnership is the direct and positive testimony of the appellant that such a partnership was formed and that the parties continued to act under it until the breach on July 20, 1920. The only evidence of any kind covering the terms under which the parties were working was the testimony of the appellant to the effect that from June 19, 1919, to July 20, 1920, he worked under an express agreement to divide the profits 50-50. In support of the finding of the trial court that no partnership had been formed the respondent relied upon the inferences which he contends the trial court was justified in drawing from other circunstances.

[2] Passing the question of the formation of the partnership and directing our attention to the suit for the recovery of money due under the common count, respondent concedes that during the period of their business relations the gross revenue from the business was the sum of $119,3 16.13. He then deducts from this total the sum of $23,600, which represents the revenue estimated on the basis of $200 per week for the period of 218 weeks upon which no commission was payable. He then gives the sum of $95,746.13 as the gross revenue upon which appellant was entitled to a commission of five per cent, amounting to $4,787.30. The payment of $15 per week for the period of 118 weeks is conceded to be $1,770. The total of these two sums is $6,557.30, to which appellant would be entitled for the entire period under respondent's theory of the case. (Through a mathematical error the respondent gives this figure as $6,478.81.) The respondent then contends that the appellant actually received the sum of $6,346.62 for his services during this period. In arriving at the amount of the gross revenue of the business respondent takes the amount shown by deposit of money in the bank only and omits therefrom all mention of cash actually received and divided between the parties at various times during the period of employment. He also omits the amount of business on hand on July 20, 1920, which

was shown to be $4,000. Thus, upon the case made out by respondent, the appellant was entitled to a judgment in some amount.

[3] These calculations are all made on the basis of respondent's theory that the appellant was to receive five per cent commission on the gross business of the concern throughout the entire period of employment. But the only evidence offered was that this arrangement was for five per cent commission and expenses and that this was changed by murnal consent on June 19, 1919, so that appellant was to receive fifty per cent of the net profits instead of five per cent of the gross. Having proved the agreement by uncontradicted evidence, appellant was entitled to an accounting to determine the net profits. If it should then appear that he had re

ceived less than his proportionate share of these profits he would be entitled to a judgment for the difference.

Judgment reversed.

Sturtevant, J., and Langdon, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 6, 1923.

[Civ. No. 4547. First Appellate District, Division Two.-June 7,

1923.]

ROBERT W. DENNIS, Administrator, etc., Appellant, v.

ELDORA BROWN, Executrix, etc., Respondent. [1] PROMISSORY NOTE-DEATH OF PAYEE AND MAKER-DISQUALIFICA

TION OF HUSBAND OF PAYEE AS WITNESS.-In an action on a promissory note by the administrator of the estate of the deceased payee against the executor of the will of the deceased maker thereof, after rejection of a claim based upon such note, the surviving husband of the deceased payee of the note is disqualified, under subdivision 3 of section 1880 of the Code of Civil Procedure, from testifying concerning matters connected with the transaction

but occurring prior to the maker's death. [2] ID.---DELIVERY-CONSIDERATION—EVIDENCE-FINDINGS.-In such an

action, where there is some evidence to justify a finding that the note was not delivered and that there was no consideration there. for, this is sufficient to justify such a finding, even though there is also sufficient evidence to support a finding to the contrary.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George H. Cabaniss, Judge. Affirmed.

The facts are stated in the opinion of the court.

1. Statute prohibiting witness from testifying to transactions with decedent as applicable to probate proceedings, notes, Ann. Cas. 1914A, 982; 51 L. R. A. (N. S.) 212.

J. J. Lermen and G. K. Burgren for Appellant.

B. M. Aikins for Respondent.

NOURSE, J.—This is an action on a promissory note for $10,000 and interest brought by the administrator of the estate of Easter Belle Stewart, deceased, against the estate of her father, James Brown, deceased. Judgment was rendered in favor of defendant, and plaintiff appeals.

The defendant Eldora Brown is the widow of James Brown, who was the father of Easter Belle Stewart by a former marriage. Easter Belle Stewart died intestate November 25, 1918, in Spokane, Washington, where she resided with her husband, Neil Stewart. About four months later, on March 21, 1919, her father, James Brown, died in San Francisco, where he resided with his wife, Eldora Brown. He left a will in which he named his wife executrix, and divided his property, share and share alike, between her and a son by his former marriage. Ten days after the death of James Brown, Neil Stewart, as surviving husband of Easter Belle Stewart, in writing, nominated the original plaintiff, William S. Dennis, as adminstrator of her estate, and requested the superior court at San Francisco to appoint him as such administrator. The application for letters named Neil Stewart and James Brown as the next of kin and heirs at law of Easter Belle Stewart. William S. Dennis died pending the appeal and Robert Dennis was appointed administrator of Mrs. Stewart's estate and substituted as plaintiff in this action. Among the papers left by the deceased James Brown at his home, or in a wallet delivered by him to his wife about two weeks before his death, was the note in suit, dated February 1, 1918, signed by him and naming his daughter payee. With it was an explanatory letter to the daughter. This action was commenced after a claim therefor presented against the father's estate was rejected by the executrix. The issues presented by the pleadings are due execution and delivery of the note and want of consideration.

The note and explanatory letter were produced by defendant on the trial and introduced in evidence by plaintiff. This letter reads: “My dear Easterbelle:

“The enclosed note is to represent value of Twenty-five hundred ($500) dollar bonds of the California Paper & Board Mills which I set aside for you when they were issued but which I was never able to give you as I used them as security for money I borrowed but they were redeemed February 1st, 1918, & instead of cash I am giving you a note as I still need the money.

“Your loving Father,

“JAMES BROWN." Plaintiff also put in evidence a letter which James Brown wrote to his daughter addressed to her at Spokane, April 14, 1918, containing the following:

“I put a note for 10,000.00 (Ten thousand) dollars in your name Easter Belle Stewart in the Safe Deposit Box & a note explaining it was for 20 Bonds of the Cal. Paper & Board Mills which I sold on Feby. Ist & that these were yours but on % of using them as collateral for borrowed money I had not been able till then to turn over to you & I am still needing the money so this note which calls for 6% int. is in place of it for the present & is dated Feby. 1st 1918 so you understand it."

The trial court found that James Brown, deceased, never made, executed, and delivered to Easter Belle Stewart either on the first day of February, 1918, or at any other time, the promissory note in suit, or any promissory note, and never promised or agreed to pay her the sum of $10,000, or any other sum; also, that said James Brown never received any consideration of any character whatsoever from Easter Belle Stewart for said promissory note.

It was the theory of plaintiff on the trial of the action, as indicated by his opening statement, that James Brown deposited this note in a safe-deposit box in the vaults of the Wells Fargo Nevada National Bank (which was rented in his daughter's name with himself as deputy) in lieu of $10,000 worth of bonds which he had previously given as a gift to his daughter; that the bonds constituted the consideration for the note, and that the deposit of the note in the safe-deposit box constituted a delivery to Easter Belle Stewart. In support of his case plaintiff's counsel questioned Neil Stewart concerning matters occurring prior to James Brown's death. Defendant objected on the ground that the witness could not testify by reason of the provisions of subdivision 3 of section 1880 of the Code of Civil Pro

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