Shea-Bouqueraz Co. v. Hartman

HART, J.

This is an action by the plaintiff against the defendant on a promissory note for the sum of three thousand dollars.

The court awarded judgment to the defendant, and thereafter granted the plaintiff’s motion for a new trial.

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This appeal is by the defendant from the order granting a new trial.

It appears from the testimony that the plaintiff was a creditor of the Sehroeder-Hartman Company, of which corporation, Hartman is a member. It likewise appears that the defendant and John D. Schroeder, also a member of the Sehroeder-Hartman Company, made and delivered the note involved here jointly and severally as a personal obligation— that is to say, that said note constituted their individual obligation and not that of the corporation bearing their names and of which they were members. The note, which was dated July 25, 1906, and made payable “one day after date,” was, as shown, for the sum of three thousand dollars, and the defendant had paid thereon the sum of one thousand dollars.

On the nineteenth day of March, 1910, a payment of two thousand dollars was made to the plaintiff by John D. Schroeder.

The plaintiff claims that the understanding was that the sum so paid was to be applied to and credited on its book account against the Sehroeder-Hartman Company and not to be applied toward the extinguishment of said promissory note. Schroeder insists that he made said payment with the specific request and understanding that it be credited on the note and not on the book account of the plaintiff against the Sehroeder-Hartman Company, and that, having expressed such desire to the plaintiff, when making such payment, he was entitled to have the money so paid applied accordingly. (Civ. Code, sec. 1479, subd. 1.)

It is not thought to be necessary to examine or reproduce here the testimony in detail, it being regarded as sufficient to say that Schroeder’s testimony, as is true of the testimony of some other witnesses testifying in behalf of the defendant, harmonizes with and would sustain, if accepted by the trial court or a jury, his contention as to the circumstances of the transaction as above indicated, while, on the other hand, the testimony of the witness, O. E. Bozio, assistant secretary of the plaintiff, and by whom the transaction was conducted in behalf of the latter, was in direct contradiction to that presented by the defendant and, if believed, sufficient to support a finding in favor of the plaintiff’s contention as to the circumstances of the transaction. In brief, this witness tes