MacGregor v. Kawaoka

[408]

VAN DYKE, P. J.

This is an appeal from a, judgment in favor of the defendants in an action brought upon a $6,000 promissory note which the trial court found was entirely discharged by payments admittedly made by respondent Kawaoka to the payee, but which were applied by it against Kawaoka’s indebtedness upon an open book account. Respondent Carlson was an accommodation maker. It appears that on July 11, 1951, Kawaoka owed plaintiff’s assignor a sum in excess of $20,000 for merchandise purchased upon credit. Prior to that date the assignor had urged upon Kawaoka that he find some way to reduce the balance of this book account and suggested that he obtain an accommodation maker to execute a promissory note with him payable to the assignor for at least a part of the total sum owing. Kawaoka testified that he agreed to do this if an understanding could be had that payments thereafter made would all be applied to the retirement of the note and not credited to the open account. He said that he informed the assignor he would not be able to get an accommodation maker unless it could be so stipulated and that the assignor then agreed that such would be the understanding and that all payments made to him by Kawaoka would be credited upon the note until it was discharged. After the note was delivered it appears without dispute that sums in excess of $10,000 were paid in to the assignor by Kawaoka, but no payments were credited upon the note. Had the understanding as Kawaoka testified to it been kept the note would have been discharged. This testimony of Kawaoka was corroborated by a witness who was present during a conversation between Kawaoka and the assignor and who said that such an understanding was arrived at between the two men. The trial court found that the note had been paid and the foregoing testimony substantially supports that finding.

The sole point presented for reversal is that the trial court erred in sustaining an objection made by Carlson’s attorney when appellant’s counsel called Carlson as a witness under section 2055 of the Code of Civil Procedure. In the course of that ruling the court announced that said section was not applicable and afforded no reason why Carlson could be called and subjected to cross-examination as an adverse witness thereunder. The record is unsatisfactory. The reporter’s transcript contains nothing that refers to the foregoing incident, but the clerk’s transcript does contain a memorandum opinion rendered by the trial court when denying a motion for new trial based upon the same asserted error. The