Claussen v. Newton

NOURSE, J.

These two eases were tried together upon the same evidence, and, though separate appeals were filed, are submitted upon the same record.

[1]

The first case of Helen Claussen

v.

John Newton was on a promissory note for $500. The trial court found that the note was executed and delivered in accordance with the allegations of the complaint. It also found that said note, together with all interest thereon, had been fully paid, and entered judgment for the defendant.

The whole attack upon this judgment is that the finding of payment is not supported by the evidence. A review of the evidence discloses that all that was offered in the case showed conclusively that the note was not paid. There was some evidence of doubtful merit that at some time during the business relations of the respondent and Adolph Thomas, the plaintiff in the second case, a payment was made by this respondent to Thomas in the sum of $1,060 on “trade acceptances and a note.” There was no attempt to connect this testimony with the payment of the note in suit, and the respondent cites no evidence to sustain the finding and presents

[437]

no argument in support of the judgment. The case presented, therefore, is one in which all the evidence and the only evidence sustains the allegations of the complaint that the note was unpaid. The judgment, therefore, must be reversed.

In the second case Adolph Thomas sued John Newton on a common count for money for services rendered in the sum of $3,939.49. An amendment to the complaint was filed setting up a second cause of action in which it was alleged that on the nineteenth day of June, 1919, this plaintiff and the defendant entered into an agreement of copartnership for the conduct of a business in the city and county of San Francisco wherein they agreed to participate in the profits of said business, share and share alike. The prayer followed for an accounting of said partnership and the recovery of the amount found to be due from the defendant. The trial court found that these allegations of the complaint and the amendment thereto were not true and rendered judgment in favor of the defendant. As in the other case, the appeal is based upon the ground that the evidence is insufficient to support these findings.