Light v. Stevens

BURNETT, J.

The action was brought to recover the sum of $3,000 and interest, alleged to be due upon a promissory note of decedent in favor of respondent executed April 15, 1902. All the allegations of the complaint are admitted except the one in reference to nonpayment, which is denied, and there is an affirmative allegation in the answer “that said promissory note was fully paid, satisfied and discharged by said intestate, Theodore A. Light, during his lifetime.” The only question, then, on this appeal is, as stated by appellant, based upon said averment of full payment.

The plaintiff offered in evidence the promissory note described in his complaint, there being no indorsement of any payment thereon, and then rested his case. This was a

prima facie

showing sufficient to support a finding that the note had not been paid.

Thereupon, C. A. Stevens, subject to the objection of plaintiff, testified as follows: “I know that subsequent to this loan of $3000.00 which Theodore A. Light secured from his brother, Theodore A. Light paid money to his brother Eugene S. Light. On July 10, 1902, Theodore A. Light paid to E. S. Light, or deposited in my bank, subject to his brother’s order, $1250.00. That was paid to him on December 9 of that same year. He cashed that certificate at the bank.” The certificate was received in evidence. It was stamped on the

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face: “C. A. Stevens, Banker. Paid Dec. 9, 1902, Calistoga, Cal.” “On the back of this certificate appeared the signature of B. S. Light. I made out that certificate of deposit and delivered it to some one, I don’t know to whom, but it was subsequently returned indorsed by E. S. Light, I think in December. Whereupon I marked it C. A. Stevens, Banker, paid Dec. 9, 1902, Calistoga, Cal.” The witness further testified in a similar manner as to two other certificates for the aggregate sum of $1,408.65, and then: “On December 25, 1903, T. A. Light paid his brother, E. S. Light, $2,000.00. Theodore A. Light drew this money out of his regular account and obtained this draft, Dec. 28, 1903, which he mailed to his brother in San Francisco, who cashed it on December 30, 1903. The signature on the back of this draft is the signature of B. S. Light. The money for this draft was paid to Eugene S. Light by the Bank of California in San Francisco. ’ ’