Innes v. Goldwater

RICHARDS, J.

This is in form an action brought to recover certain personal property pledged to the defendant as security for several loans made to plaintiff by the defendant, doing- business under the name of California Loan Office. The answer of the defendant consisted in denials of the plaintiff’s ownership and right to the possession of the said property.

Upon the trial the following practically undisputed facts appeared in evidence: The defendant was a pawnbroker regularly licensed and qualified under the statute, engaged in that business. The plaintiff came to him from time to time to borrow money, pledging different articles of the property in question as security for these several loans, until, they aggregated the sum of $396.50. The plaintiff made several payments on account of these loans in small sums, which aggregated in all $34.50. He finally failed or refused to make further payments, and the defendant undertook to sell out said property for the balance remaining due upon the debt, whereupon this action was brought. It further appeared in evidence that on the occasion of these several loans defendant made an entry in his register, which he required the plaintiff to sign, and which was in the following form:

“No. 36,193. Date Feb. 28, 1914.

“Copy of Register from California Loan Office, Oakland, Cal.

“Description of property pledged and estimated value of property sold. Jewelry. Amt. loaned $250.00, interest at the rate of 2 per cent per month. This is to certify that I have received this copy of register and returned same to California Loan Office, to be its custodian till called for by me within the date of its duration, which is seven months from date.

“Name J. E. M. Innes,

“Residence, 474 Jean st., Oakland.”

[103]

It does not appear that the defendant ever actually delivered to the plaintiff a copy of this register entry as the law (Pen. Code, sec. 339) requires, but that he did deliver to the plaintiff a pawn ticket in which the rate of interest to be charged was not specified.

The plaintiff at the trial undertook to show by his oral testimony that at the time of these several loans the interest actually agreed upon and charged was more than two per cent per month, that the agreement was that he was to pay four per cent per month, and that he actually made payments at said rate of interest for several months. To this evidence the defendant objected upon the ground that the above register entry, which the plaintiff signed, constituted an agreement in writing as to the rate of interest to be charged, which the plaintiff could not be permitted to vary by paroi.