First National Bank of Riverside v. Jacoby

COOPER, C.

This is an appeal from an order denying defendant’s motion for a new trial. The complaint contains

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three counts in regard to the same cause of action. The second count states that on March 1, 1899, plaintiff, at the request of defendant, paid to one Kincell $457.87; that defendant promised to repay the same, but has failed to do so, and the sum remains due and unpaid. The court found the facts thus stated to be true, and ordered judgment accordingly.

The plaintiff’s evidence shows that in January, 1899, defendant came to .its office with Kincell and stated that Kineell would be engaged during the season in packing and shipping fruit for defendant; that in the business it would be necessary for Kineell to have money to pay for labor and material, desired plaintiff to advance the money Kineell might want for the purpose, and that Kincell would draw his drafts upon defendant in Los Angeles for amounts as needed; that if plaintiff would pay Kineell such drafts defendant promised to pay them when presented to him in Los Angeles; that plaintiff promised to comply with the request, relying upon the defendant’s promise.

! On the eleventh day of January, 1899, Kineell drew a draft upon defendant for $167.16, which was paid, and several like drafts for different amounts were drawn during January and February, 1899, in all cases the defendant paying the drafts when presented through plaintiff’s correspondent in Los Angeles.

• On March 1, 1899, Kincell drew a draft on defendant for $457.87, upon which plaintiff paid the money, passing it to the credit of Kincell.

When this draft was presented to defendant he refused to pay it. Defendant claims that prejudicial errors occurred, for which the order should be reversed.

The draft in question was sent by plaintiff to the Los Angeles National Bank—its correspondent—for collection. The prior drafts had been sent to the same bank and collected by it. In cross-examination of Bittinger, the cashier of plaintiff, certain questions were asked for the purpose of showing that the Los Angeles National Bank was the correspondent of plaintiff in Los Angeles 'for attending to all its business, that it was a general agent of plaintiff, and that defendant notified the Los Angeles bank before the draft in dispute was presented