Perrin v. Carbone

BUCKLES, J.

This is an action to recover the sum of three hundred and twenty dollars, money loaned. The answer denies the loan as plaintiff pleads it, and sets up the defense that tiie money was advanced to defendant by plaintiff as the agent of the Washington Life Insurance Company of New York for the purpose of defraying the expenses of defendant, who was acting as soliciting agent for said insurance company, and that such moneys were not to be repaid except out of the commissions he, the defendant, should earn, when the same should be sufficient. The case was tried by a jury. There were but two witnesses, the plaintiff and the defendant, and the verdict was for the defendant, and judgment was rendered accordingly for defendant, for his costs, amounting to $39.65. A motion was made for a new trial, and denied. The appeal is from the judgment and from the order denying the motion for a new trial

[297]

The evidence shows no difference between the parties as to the amount of money advanced or the date when loaned, but there is a marked and substantial difference as to the repayment of the three hundred and twenty dollars, plaintiff saying it was to be repaid without any condition, and the defendant that it was to be repaid only in case he should make it in the way of commissions in selling insurance for the company. With this very substantial conflict in the evidence the judgment could not be disturbed unless there was some reversible error committed at the trial. Several errors are complained of in the bill of exceptions, but only two seem to have been taken as at all serious, for appellant has mentioned but these two in his argument. The first alleged error our attention is called to is the ruling of the lower court in overruling appellant’s objection to the question asked Perrin on cross-examination, which is as follows: “Why did you make an-exception in Charlie Carbone’s case?” The court overruled the objection, and the record fails to show that the witness answered it at all, unless the answer can be found in the answer to some other question to which there was no objection interposed. The question not having been answered, there was no prejudicial error.

(People

v.

Dennis,

39 Cal. 625-635.)