Everts v. Will S. Fawcett Co.

BARNARD, P. J.

This is an action on certain promissory notes totaling $175,000 which were given by the defendant to the plaintiff’s assignor, the Bank of America National Trust and Savings Association. In its answer the defendant denied the allegations in the complaint with reference to the assignment of the various notes and, as an affirmative defense and by way of counterclaim and set-off, alleged that some three years prior to the execution of these notes it had been induced to exchange certain stock in the Bank of Italy Trust & Savings Association, and in Bancitaly Corporation, for certain stock in the Transamerica Corporation by and through certain fraudulent misrepresentations made by plaintiff’s assignor with respect to the value of the last named stock. Among other things, it was further alleged in this answer, which was filed on December 28, 1932,

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that the defendant began an investigation as to the value of this stock during the' months of June, July and August, 1932, and that it discovered, in October, 1932, that the stock in question was of a named value very much less than that represented. It was then alleged that the defendant had been damaged through these misrepresentations in the sum of $784,441.

A demurrer to the answer was overruled on March 1, 1933, and on March 7, 1933, the plaintiff filed notice that he would move the court on March 20, 1933, to set the cause for trial. For some reason which does not appear, the court entered an order on'March 10, 1933, setting the cause for trial on May 22, 1933. On March 20, 1933, when plaintiff’s motion to set for trial was called for hearing, the court, on motion of the defendant, entered an order vacating its previous order setting the same for trial and resetting the case for October 9, 1933. Thereafter, on April 7, 1933, and after notice duly given, the court vacated its order setting the cause for trial on October 9th and reset the same for May 22, 1933. Notice of this last order was served on the defendant on April 11, 1933. On May 19, 1933, the defendant moved for a continuance on the ground that the same was necessary in order to permit it to take certain depositions and produce certain evidence, as referred to in an affidavit filed in support of the motion. A counter-affidavit was filed and, after argument, the motion for a continuance was denied. When the case was called on May 22, 1933, the defendant again moved for a continuance for a period of at least thirty days on the grounds that Will S. Fawcett, president of the defendant corporation and the principal witness therefor, was ill and would be unable to be present for a period of at least seven days and that Oscar Lawler, chief counsel for the defendant, was engaged in another matter and would be unable to assist in the trial of this case unless the same was continued for a period of approximately thirty days. This motion being denied the defendant withdrew its counterclaim and the court ordered the cause tried upon the amended complaint and the remaining part of the answer. The defendant offered no evidence and the plaintiff recovered judgment, from which this appeal was taken.