Gilde v. Schuster

TYLER, P. J.

Action for money had and received. The complaint is in two counts. Under the first it is alleged that plaintiff, on December 26, 1923, lent to the defendant at his request the sum of $1,000, which he promised to repay with interest thirty days after date. The second count alleges that defendant received said sum from plaintiff under a promise to repay the same within such time.

Defendant in his answer set up as a special defense to each of the two causes of action that the money was obtained to be loaned by him to the Great Western Auto Finance Company for the benefit of plaintiff, along with the sum of $1,500 which defendant was lending to the company on his own behalf; that plaintiff’s portion thereof had been so loaned to the company by defendant at the request of plaintiff and at his direction. Upon the trial plaintiff, as part of his case, introduced in evidence a document signed by defendant and delivered by him to plaintiff in words and figures as follows:

“Oakland, Cal, December 26, 1923.

“Received from John Gilde One Hundred Dollars which I agree to invest at open interest rate for a period of thirty

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days, at which time $1,000.00 plus open interest will he paid on demand.

“Geo. A. Schuster.”

The lower portion of the document contained the additional words and figures:

“I have in hand security of the value of $5,000.00 on 3 notes, of which John Gilde has an interest at $2,000.00.

“Geo. A. Schuster.

“P. S. These notes under date of 12/27/23.”

All of the lower portion to the original document was written thereon by defendant two or three days subsequent to the delivery of the writing in its original form, under circumstances hereinafter referred to. It was contended by plaintiff at the trial that the agreement was a promissory note. Defendant, on the other hand, claimed that the document was a mere receipt and agreement to invest and that defendant had loaned the funds to the Great Western Auto Finance Company in good faith and that, therefore, he could not be held liable upon the instrument. The trial court admitted parol testimony for the purpose of interpreting the meaning of the writing. Under this ruling all of the surrounding circumstances of the transaction were brought out. It appears therefrom, in substance, that on or about December 23, 1923, defendant visited a barbershop conducted by plaintiff and in the presence of several employees stated that he could obtain ten per cent per month on automobile loans. Doubts were expressed as to his ability so to do and of the safety of loans of this character. Defendant informed plaintiff that he wanted to invest in a loan of $2,500 and had only $1,500, and requested that plaintiff loan him $1,000 to make up the difference. Defendant assured plaintiff that the investment he intended to make was a perfectly safe one, as the company in placing the loans limited the value of the automobiles to fifty per cent of their value. Defendant then informed plaintiff that he would give him his personal note, but would not guarantee to pay him $100 for the month’s interest, but that it would not be less than $70. After thinking the matter over plaintiff advanced to defendant $1,000 and received from him the instrument in question. On the following day defendant delivered to the Great Western Auto Finance Company the sum so obtained from