Non-Refillable Bottle Co. v. Robertson

HART, J.

This is an action on a promissory note, negotiable in form, for the sum of $500, executed by the defendant in favor of and delivered to one Max Axelrood, in the <iity of San Francisco, on the twelfth day of August, 1904. Said note called for interest on the principal sum at the rate of six per cent per annum, and was made payable after the nineteenth day of August, 1904. The complaint alleges that

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on the seventeenth day of August, 1904, for value received, said Axelrood “duly indorsed, assigned, transferred and set over to the plaintiff the said promissory note and all moneys due, or to become due, thereon, and that the said plaintiff is now the owner and holder thereof.”

The plaintiff is alleged to be a corporation duly incorporated, organized and existing under, and in pursuance of, the laws of the state of California, having its office and principal place of business in the city of San Francisco. The defendant at the trial admitted this allegation to be true.

A jury was impaneled and sworn to try the issues; but, upon the close of plaintiff’s case, the court, on motion of the defendant, granted a nonsuit. It is from the judgment of nonsuit that this appeal is taken. The ground upon which the court granted the nonsuit was that “the plaintiff had not proved that it was the owner of the said promissory note, and that it had no right to sue thereon.”

In her answer the defendant admits the execution of the note and that it was given in consideration of an indebtedness due from her to Axelrood in the sum appearing upon the face thereof for one hundred shares of stock purchased by her from said Axelrood in the plaintiff corporation; but she sets up the special defense of want of consideration, in that said note was obtained through misrepresentation and deception, etc. In support of this defense, she alleges that Axelrood represented to her that the stock in plaintiff corporation was very valuable, and that a certain non-refillable bottle, for which the plaintiff had secured a patent right from the United States government, was of great value, and that a large sum of money had been offered by different parties for the same; that Axelrood represented to her that he contemplated going to Canada, where he intended to introduce the patent, and that he would give defendant’s son a lucrative position with plaintiff if she would buy the one hundred shares, which he declared represented nearly all the stock that was then for sale. She alleges that within twelve days after the execution and delivery of the note she learned that she had been deceived, defrauded and imposed upon, and that immediately thereafter “and long before this action was commenced, to wit: on the 24th day of August, 1904, she offered in writing to return said stock and the certificate given" in