Francis v. Independent Electrical Supply Co.

[483]

CONREY, P. J.

Appeal by the defendant from the judgment and from an order denying its motion for a new trial.

The action is upon a promissory note made by the defendant to a corporation; the complaint alleging that before the commencement of the action the note was assigned by the payee to the plaintiff. The answer to the complaint did not deny that the note was unpaid. After all of the plaintiff’s evidence had been introduced, the defendant for the first time applied for permission to allege payment. This request was denied. It is now claimed that the court’s refusal to allow the proposed amendment was an abuse of discretion by reason whereof the defendant is entitled to a new trial. No facts were shown excusing the defendant’s failure to put an allegation of payment into its original answer. The application for leave to amend was not accompanied by affidavits, nor by any other matter of record from which one can infer a reasonable probability that the defense could have been sustained. Therefore we will presume that the court properly exercised its discretion in that matter.

The only other ground of appeal urged on behalf of appellant is that the evidence is insufficient to support the finding that the note had been assigned and transferred to the plaintiff. The point made is that the evidence failed to show that the assignment was made by a person who had been given the authority, or had been in the habit of signing contracts on behalf of his company, or indorsing and assigning its negotiable paper. The testimony of the agent who made the assignment on behalf of the corporation was as follows:

“1

am sales agent of John A. Roeblings ’ Sons Company of California and as sales agent have control of and possession of all books of account and the evidences of indebtedness and all other matters in connection with the business of that corporation in the southern end of California. ’ ’ It further appeared that another person was president and general manager of the corporation. We think that this evidence was sufficient to support the inference that the agent was authorized to make the assignment. The fact that a corporation has a general manager whose supervision extends to all of its business, does not exclude its right to vest in another agent the powers of a general manager representing the corporation in the conduct" of some department of its business. The