Gillespie v. Salmon

COOPER, J.

This action was brought by plaintiff, as assignee of one Maggie Gillespie, to recover upon six promissory notes, amounting to $581.28, besides interest. The jury returned a verdict in favor of plaintiff, upon which judgment was accordingly entered. This appeal is from the judgment on the judgment-roll and a bill of exceptions.

The defendant alleged in his answer, and contended at the trial, that the promissory notes were made under false and fraudulent representations, without consideration, and that they were never delivered to or owned by Maggie Gillespie, the alleged assignor. As the merits of the case depend upon the question as to whether or not the contentions of defendant are well founded, we will not discuss the questions raised as to the pleadings and other rulings of the court on the admission or rejection of evidence during the trial. The evidence shows substantially the following facts: Maggie Gillespie, the alleged assignor, is a sister of the plaintiff, and a sister in law of the defendant, who married the sister of plaintiff, and Maggie Gillespie. The plaintiff, defendant, and one MacCurdy, entered into a copartnership in January, 1893, for the purpose of editing and ■ publishing a newspaper in San Jose, California, known as “The Daily Record,” which partnership continued up to the early part of June, 1894, when it was dissolved. During the continuance of the partnership the enterprise did not pay expenses, but ran behind each and every month. In order to get money to pay the shortage the plaintiff, with the consent of his copartners, borrowed money for the use of the copartnership from time to time from Maggie Gillespie, the dates and amounts being as follows: June 3, 1893, $100; June 9, $200; July 22, $100; July 25, $200; October 17, $125; November 25, $50; April 16, 1894, $105, making in all $930. For the above amounts the partnership notes were given to Maggie Gillespie, signed by the partners, all bearing interest at the rate of eight per • cent per- annum. These notes were never paid by the copartnership, but were all taken up and paid by plaintiff prior to May 1, 1897, and upon payment were assigned by Maggie Gillespie to plaintiff. After May 1, 1897, there was no fur

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ther indebtedness to Maggie Gillespie from the copartnership or from plaintiff, and plaintiff became the owner of the partnership notes so assigned to him. Plaintiff tried to get the defendant to pay his portion of the notes, but did not succeed in doing so. He then employed a firm of attorneys for the purpose of collecting from defendant the amount claimed by plaintiff to be due him from defendant. Maggie Gillespie did not employ or know anything about the employment of the attorneys, as she had no further interest in the matter. On June 1, 1897, the attorneys so employed by plaintiff wrote to defendant the following letter: “June 1st, 1897. R. Salmon, Esq., c/o California World, No. 623 Montgomery street, City—Dear Sir: Miss Maggie Gillespie has presented some notes to us long since over due, and one of which outlaws on the 3rd of June. The notes are signed by R. S. Salmon and W. W. Gillespie in part, and by R. Salmon, W. H. MacCurdy and W. W. Gillespie in part, The amounts are: $100; $200; $100; and $200; $125, $50, and $105. The amount due from you upon the whole up to the present time is $571.04. If you will give a new note for that amount we will extend the time. Mr. W. W. Gillespie pro-’ poses to do this with regard to his share, in order to avoid suit. By calling at our office tomorrow morning before 12 o ’clock you will save yourself the trouble and expense of being sued.”