Yellow Jacket Gold & Silver Mining Co. v. Holbrook (1914) · DecisionDepot

Yellow Jacket Gold & Silver Mining Co. v. Holbrook

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jun 3, 1914 No. Civ. No. 1218.Published

Before: Chipman

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Holding. The court held that the defendant's written agreement constituted a promissory note, creating an independent obligation to pay that was not conditional upon the receipt of funds by a third party, and that the third party was not a necessary party to the action.

Issues

Whether the defendant's agreement constituted a promissory note independent of the third party's conditional order.
Whether the third party was a necessary party to the action.
Whether the defendant met the burden of proof regarding the affirmative defense of lack of consideration.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Lewis did not sign the promissory note and was not bound by it and was, therefore, not a necessary party to its enforcement in the action.”

“A written instrument is presumptive evidence of a consideration.”

Synopsis

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John E. Richards, Judge presiding.

The facts are stated in the opinion of the court.

[688]

CHIPMAN, P. J.

The action was to recover upon the following instrument, designated in the complaint as “a contract and promissory note”:

“San Francisco, California, March 23, 1911.

“Mr. F. R Lewis,

“San Francisco, California.

“Dear Sir:

“Please pay to the Yellow Jacket Gold and Silver Mining Company, or order, the sum of $1227.86, with interest at seven per cent per annum from April 1, 1908, out of the first money you shall receive on my account from the estate of F. W. Sisson, deceased.

“C. H. Holbrook, Jr.”

“The foregoing order is herewith accepted this 30th day of March, 1911, provided any money is ever received by me for account of C. H. Holbrook, Jr., from estate of F. W. Sisson, deceased.

“F. R Lewis.”

“In consideration of forbearance on the part of the' Yellow 'Jacket Gold and Silver Mining Company, and for other valuable consideration, the receipt whereof is hereby acknowledged, I agree to pay to said company, or order, the sum

$1227.86 (with interest thereon from April 1, 1908, at seven per cent per annum), on April 1, 1912, in case said sum shall hot have been paid at said time by said F. R Lewis, in accordance with the terms of the foregoing order.

“C. H. Holbrook, Jr.”

It is alleged that, on April 1, 1912, and frequently since said date, plaintiff demanded of F. R Lewis, one of the parties to said contract, that he pay to plaintiff the sum of $1227.86, with interest at seven per cent per annum from April 1, 1908, to date of demand, but that the said Lewis has refused and does now refuse to pay the same; that prior to the commencement,of the action and on May 6, 1912, “and at several other times,” plaintiff demanded of defendant Holbrook that he pay to plaintiff said sum with interest according to said contract and promissory note but that the said Holbrook “has not paid said sum or any portion thereof, except the sum of $343.76 on account of interest to April 1, 1912”jj that, “ever since said 23d day of March, 1911, plain

Yellow Jacket Gold & Silver Mining Co. v. Holbrook

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Synopsis

CHIPMAN, P. J.

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