Clark v. Smith

THE COURT.

This cause was transferred to this court because of a doubt concerning the sufficiency of the testimony to support the findings of the trial court, but upon a re-examination of the record and further argument of counsel, we are convinced that the cause was properly disposed of in the opinion of the District Court of Appeal, First Appellate District, Division Two, written by Mr. Justice Spence, which opinion, as follows, is hereby adopted as the opinion of this court:

“This is an appeal by the defendant executrix from a judgment in favor of plaintiff in an action brought by plaintiff to recover upon two promissory notes executed by Ralph H. Smith, deceased, during his lifetime.

“Deceased died in 1928. Plaintiff held two promissory notes, one dated January 3, 1927, for the sum of $12,000

[751]

and the other dated January 10, 1928, for the sum of $5,000. Claims were duly presented to the defendant executrix and upon her failure to approve or reject said claims within the time provided by law, plaintiff brought this action. The trial court found in favor of plaintiff upon the issues of due execution and consideration and accordingly judgment was entered in plaintiff’s favor.

“Appellant first contends that the evidence is insufficient to support the findings. The attack is directed solely to the findings relating to consideration. Appellant had alleged in her answer that each of said notes was executed ‘without any consideration whatever; that said Ralph H. Smith received nothing of value for the execution of said instrument and that plaintiff parted with nothing of value’. The trial court made findings that said allegations were not true and found as to each note that ‘plaintiff paid unto Ralph H. Smith adequate consideration for the execution and delivery of said promissory note’. In our opinion these findings are supported by the evidence.

“On the trial respondent introduced sufficient evidence to make out a

prima facie

case and then rested. Thereupon appellant called respondent to the witness stand under section 2055 of the Code of Civil Procedure in an effort to show want of consideration for the notes. Respondent was questioned in a searching examination covering her affairs over a period of almost twenty years. It appears that respondent met the deceased in 1918 when he acted as her attorney in her divorce action. From about 1920 until a few months prior to his death in 1928 respondent and deceased lived together in the same house in Santa Cruz. The evidence shows that deceased handled her affairs during that time and that respondent had the utmost confidence in the deceased. She testified that he invested and reinvested her money without rendering an accounting; that the notes represented ‘money that he had of mine, attending to my business’; and that at the time he gave her the $5,000 note he said ‘he still owed me this $5,000 and it may be some more’.