McKey v. MacIntosh

SHAW, J.

This is an appeal by defendants from a judgment in favor of plaintiff upon a promissory note executed

[629]

by E. D. and R. B. Macintosh, payment of which was guaranteed by defendant Buffet.

The court found that plaintiff was the legal owner and holder of the note, which by its terms was made payable to the Chicago Electric Motor Car Company. [1] Error is predicated Upon the fact that the court, in support of this finding, admitted in evidence a copy of a deed of assignment 1 whereby the Chicago Electric Motor Car Company duly transferred to plaintiff all its assets, including the note herein sued upon. The loss of the original deed, shown to have been duly executed by officers of the corporation and the seal affixed thereto pursuant to a resolution adopted by the hoard of directors, was fully established, and hence it was not error to admit the copy thereof. [2] Moreover, not only was the note indorsed by the payee named therein

(Meyer

v.

Foster,

147 Cal. 166, [81 Pac. 402]), but plaintiff’s possession of the note, though not indorsed, was sufficient as a

prima facie

showing of his ownership (Be

rri

v.

Minturn,

1 Cal. Unrep. 50); hence defendants could not have been prejudiced by the evidence complained of, even were it deemed incompetent.

[3]

Another alleged error is based upon the rulings of the court in refusing to admit evidence offered by defendants for the purpose of showing want of consideration for the note, which was given as the purchase price of a Chicago electric motor-car sold and delivered by the company to the makers of the note. While appellants at all times retained possession of the car, they, nevertheless, insist that they should not be required to pay for the same, for the reason that on June 17, 1914, they, subject to cancellation at its pleasure, entered into a contract with the Chicago Electric Motor Car Company whereby it agreed to sell and they agreed, on or before June 17, 1915, to buy from said Motor Company 1 ‘ as many-of the electric pleasure cars manufactured by the Chicago Electric Motor Car Company,” at the prices therein specified, which said contract further provided that the Macintoshes should at all times keep on hand for demonstrating purposes one model of the motor-car so manufactured by said company, and pursuant to which provision it is claimed the car in question was purchased. It is further alleged in the answer that shortly after the purchase of said car the Motor Com