Connelly v. Bank of America National Trust & Savings Ass'n

MUSSELL, J.

This is an action to quiet title and for cancellation of a promissory note and trust deed. Plaintiffs executed the note involved on May 16, 1953. It was for $4,000 and was payable to H. G. Gooder and Helen 0. Gooder, or order, in quarterly installments of $166.67, with interest. On June 10, 1953, Gooder and his wife assigned the note and trust deed to E. A. Walker.

On September 30,1953, Walker called at plaintiffs’ place of business to collect the first payment due on the note. He had the note with him at the time, and after plaintiff Leroy Connelly had made payment, Walker took the note out of his pocket, handed it to Connelly, and said, “I am going to give you this note, but I am going to come around and collect the payments on it as long as I live.” Connelly said, “You mean that if you die that I won’t have to make any payments ? ’ ’ And he said “Yes, it is yours, or words to that extent.” When Walker gave Connelly the note and told him it would be his when he didn’t come after the payments, Connelly replied that he “would be around collecting notes long after that one was paid off.” On cross-examination Connelly testified that Walker told him that when he did not come for collections any more, the note was his. After receiving the note from Walker, Connelly put it in his safe and it remained in his possession thereafter until the trial of the instant action. On December 30, 1953, when the second installment on the note was due, Walker again called at Connelly’s place of business to collect the money. Mr. Allen, who was employed by Connelly, made out the check and made a notation on it of payment and interest paid. Connelly wondered about the trust deed and asked Walker about it and the note and Walker stated that he would do “whatever was necessary in regard to it.” Walker spent about 45 minutes looking around Connelly’s shop and left. Before the March payment was due on the note, Connelly made out a check for it and left the cheek in his office for Walker. However, Walker died on March 12, 1954, and no further payments were made on the note.

[305]

The record shows that Connelly was not related to Walker; that he first became acquainted with him in 1937 or 1938; that at that time Connelly was a battery repairman and made a service trip to Walker’s place of business in Santa Ana where Walker was operating a feed mill. Connelly went to see Walker two or three times and Walker went to Connelly’s shop on two or three occasions. In 1947 Connelly stopped in to see Walker and in 1950 Connelly, together with Hr. H. G. Gooder, who purchased Walker’s mill buildings and who was one of the payees on the note involved, visited Walker and Walker gave Connelly some shafting which was being removed from the mill.