White v. White

California Court of Appeal May 10, 1940 No. Civ. 12269Published

Before: McCOMB

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Holding. The court affirmed the judgment for the plaintiff, holding that the trial court did not abuse its discretion in admitting secondary evidence of a lost document and that the plaintiff had authority to complete the blank promissory note within a reasonable time before the statute of limitations expired.

Issues

Whether the trial court erred in admitting secondary evidence of a lost document without sufficient foundation.
Whether the plaintiff had authority to fill in the blank maturity date on the promissory note.
Whether the blank in the note was filled in within a reasonable time.
Whether the action was barred by the statute of limitations.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The rule is established in California that the sufficiency of the preliminary proof of the loss of a document before testimony as to its contents is received is addressed to the sound discretion of the trial judge”

“The law is established in California that when an instrument is delivered which contains a blank, the person in possession thereof has prima facie authority to complete it by filling in the blank.”

“The determination of the question what is a reasonable time depends upon the facts of each particular case”

[59]

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover the amount due upon a promissory note, defendant appeals.

These are the essential facts:

August 14, 1924, defendant signed and delivered to plaintiff a promissory note in the sum of $2,000. At the time of delivery plaintiff was named as payee in the note, but the space for the insertion of the due date was left blank. In March of 1938, plaintiff filled in the blank with the words “10 years”, thus making the maturity date of the note ten years after date.

Defendant relies for reversal of the judgment on these propositions:

First: The trial court committed prejudicial error in permitting a witness to give testimony as to the contents of a lost document, for the reason that a sufficient foundation had not been laid for the admissibility of the testimony.

Second: Plaintiff ivas without authority to insert into the note the words “ten years”.

Third: Even if plaintiff had authority to fill in the blank left in the note, it was not filled in within a reasonable time after the delivery of the note.

Fourth: The Statute of Limitations (subd. 1, sec. 337, Code Civ. Proc.) has barred any right of action that plaintiff might have had predicated upon the note.

The first proposition is untenable. John L. Mason was called as a witness on behalf of plaintiff and testified that in 1924 he was employed as bookkeeper and cashier for Hanover Woolen Manufacturing Company, of which plaintiff was general manager, and that in the course of his duties he read the correspondence between plaintiff and defendant relative to the note which is the subject of dispute here. He testified that he read a letter written by defendant to plaintiff and placed it in the personal file of plaintiff where it remained until destroyed, when the Hanover Woolen Manufacturing Company was placed in receivership. He further testified that he had endeavored to locate the letter but without success. He was then permitted over objection to testify that the letter in substance which defendant had sent to plaintiff requested a loan of $2,000 which would have to run for a long term. He further testified after identifying the note which

White v. White

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