Fisher v. Frank

COOPER, P. J.

This action was brought to recover upon a draft drawn in favor of W. C. Kennedy, accepted by defendant, and duly indorsed to plaintiff. The draft with its indorsements is as follows:

[473]

“San Jose, Cal., Sept. 16th, 1904.

“On receipt of the F. Fisher prunes by you pay to the order of W. C. Kennedy Two thousand five hundred and thirty-eight and 12/100 dollars as payment in full for receipts Nos. 3 and 6, value received, and charge the same to account of H. C. NEWBY.

“To George Frank & Co., San Jose, Cal. No. 4.

“Accepted, George Frank & Co.

“Nov. 2d, 1904. Reed. $800.

“ Jany. 19, ’05. Reed. $300. Pay to Fiacro Fisher.

• “W. C. KENNEDY.”

Judgment was prayed for the balance of $1,438.12 remaining due upon the draft after deducting the payments that had been made thereon. The case was tried before the court, and findings filed, upon which judgment was ordered entered in favor of plaintiff. Defendant made a motion for a new trial, which was denied. This appeal is from the judgment and the order denying a new trial.

It is claimed that the court erred in denying defendant’s motion for a nonsuit, and further, that the evidence does not support the finding of the court in regard to the delivery of the prunes, which finding is as follows: “That all the Fisher prunes referred to in said draft or contract, and mentioned in receipts 3 and 6 therein referred to, were in pursuance of agreement with H. C. Newby duly delivered to H. C. Newby at Coyote station, and were cured and dried by him, and were then by him duly shipped to and received by said George Frank; and that the whole of said prunes were so received by him on and before August 17th, 1905.” As each of the alleged errors goes to the sufficiency of the evidence, and involves the question as to the construction of the draft, we will discuss them together.

Plaintiff had sold the prunes represented by receipts Nos. 3 and 6 to H. C. Newby. Receipt No. 3 was to the effect that Newby had received from plaintiff 145,198 pounds of green prunes at the price of $23 per ton. Receipt No. 6 was to the effect that Newby had received 110,291 pounds of green prunes at $23 per ton. The amount due plaintiff for the prunes represented by both receipts was $2,938.12, but as $400 had been paid to him before the bill of exchange was drawn or accepted it was drawn for the balance of $2,538.12.