Selig Cahn, Inc. v. California Wrecking Co.

EDMONDS, J.

The respondent in this action recovered a judgment upon two promissory notes made by the appellant. As a defense to the action the appellant asserts that these notes were paid by two others later given by it. The principal question presented by the appeal is whether there is evidence to support the findings of the trial court to the contrary.

In 1934, Selig Cahn and his son Julian Cahn were president and vice-president respectively and also directors of the appellant corporation. Selig Cahn had full charge of all of its finances and accounts. On July 15, 1934, the corporation executed and delivered to one M. B. Cohn a promissory note for the principal sum of $2,000. The following month it gave another note to the same payee for the principal sum of $1500. These two notes were later transferred to Selig Cahn, and, after maturity, to the plaintiff corporation.

The facts concerning the issuance and delivery of the notes are not disputed. The evidence also shows that on May 1, 1935, the appellant executed and delivered, to Selig Cahn, the then owner and holder of them, two other notes, one for $3,500 representing the principal thereof, and another for $158.75 representing accrued interest. It is contended by the appellant that the evidence shows that these notes were accepted by Selig Cahn in full payment of the notes made in

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1934 and that the respondent is not entitled to recover upon them.

The general rule is that the giving of a new note as a renewal of one outstanding does not amount to payment; the presumption is that the renewal note was not taken by the payee in payment.

(Bridge

v.

Connecticut Mut. Life Ins. Co.,

167 Cal. 774 [141 Pac. 375];

Sather Banking Co.

v.

Briggs,

138 Cal. 724, 733 [72 Pac. 352];

Kane