Brainerd v. Kydd

THE COURT.

This is an appeal by defendant from a judgment in favor of the plaintiff and from an order denying defendant’s motion for a new trial.

The complaint is founded upon a promissory note made by defendant, dated August 12, 1910, payable to her order at the office of the Western States Life Insurance Company one day after date, and indorsed by her in blank. On the day this note was delivered the plaintiff and the defendant met at the home of the defendant. He represented himself as, and in fact was, the agent of the company, authorized to take subscriptions for its stock. After some negotiation the defendant agreed to subscribe for forty shares at twenty-five dollars per share, whereupon the note in suit, an application, and a re

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eeipt were signed and countersigned respectively by plaintiff and defendant. Plaintiff received the note and application, and defendant the receipt. The application and receipt, consisting of printed forms with blank spaces which the parties filled in, contained the terms of plaintiff’s agency, and constituted the written contract for the sale and purchase of the stock. Defendant expressed herself as willing to pay at once the amount called for by the contract if the plaintiff would wait until she could go to the savings bank to procure the money; but as the plaintiff was leaving for Honolulu on that day he could not wait, and took the one day note in issue here instead of cash. It was understood between the parties when the plaintiff took the note that the next day the defendant would call at the office of the Western States Insurance Company in San Francisco, pay her note and take delivery of the stock. Plaintiff at once took the note and application to W. E. Grigsby, of the firm of Pratt & Grigsby, general agents of the insurance company, explaining the transaction and telling him that the defendant would call the next day. Mrs. Kydd called as she had promised; but having in the mean time learned that she could invest her money to better advantage declined to proceed with the transaction. The company on the other hand refused to release her from the obligation she had incurred, and tendered to her the stock called for by the contract. She declined both the tender and to pay the note. The note and application for the stock remained in the possession of Pratt & Grigsby until the plaintiff returned from Honolulu, which was some time after the apparent maturity of the note. Learning what had occurred plaintiff, with a view doubtless of saving his commissions, bought the note from the company. The stock had been issued in the name of Richard O’Connor and indorsed by him, and was held by the company ready to turn over to the defendant at any time upon payment of the note.