Black v. Meyer

California Supreme Court Jul 14, 1928 No. Docket No. L.A. 9180.Published

Before: Preston

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Holding. The court held that the evidence was insufficient to support the judgment because the plaintiff failed to overcome the legal presumption of payment and cancellation arising from the fact that the maker possessed the note at the time of his death.

Issues

Whether the evidence was sufficient to support the findings that the note was executed, delivered, and not intentionally destroyed or paid.
Whether the possession of a note by the maker at the time of death creates a rebuttable presumption of payment and cancellation.

Disposition. reversed

Quotations verified verbatim against the opinion

“The very fact that said alleged note, or the signature thereto, was in the possession of the maker before his death and was found upon his dead body, gives rise to certain disputable presumptions as to payment and cancellation”

“Possession by the maker raises a rebuttable presumption of payment.”

PRESTON, J.

This suit was commenced by C. W. Dorris. He subsequently died, and defendant’s appeal is therefore

[505]

prosecuted against Ms executor. The action is one to recover upon a creditor’s claim filed against the estate of Henry D. Meyer, deceased, based upon an alleged promissory note dated November 26, 1923, executed by decedent to said C. W. Dorris, payable six months after date, in the principal sum of $25,000, with interest thereon at seven per cent per annum.

The peculiar facts of the case are that no note was produced nor was any direct evidence of its execution offered. In the creditor’s claim, which contains only what purports to be a true copy of said note, it is stated, as was likewise asserted upon the trial, that the original thereof was totally destroyed with the exception of a fragment found upon the dead body of the alleged maker, upon which appears a signature and a small portion of the printing, as follows: “this note or any portion thereof I promise ourt may adjudge reasonable as Attorney’s fees in said suit Henry D. Meyer (signed).”

Section 1880, subdivision 3, of the Code of Civil Procedure provides that a party to an action against an executor upon a claim against the estate of a deceased person cannot be a witness as to any matter or fact occurring before the death of such deceased person. By reason of the prohibition of this section such testimony of plaintiff, C. W. Dorris, as was admitted over the objection of defendant was extremely limited. The court did permit him, however, to identify the fragment as having been torn from a document, of which the note set forth in the claim was a copy, and that he last saw it in the outer coat pocket of said Henry Meyer, deceased.

The substance of the testimony of other witnesses was that Dorris and Meyer had had certain business relations and in the year prior to Meyer’s death had endeavored to make some settlement of their affairs; that during said period Dorris had been seen in possession of a $25,000 note apparently executed by Meyer, which he exhibited on several occasions and even had copied; that Meyer had likewise mentioned to various people a $25,000 note held by Dorris, but he had emphatically declared more than once that he would never pay it. Handwriting experts testified for both parties, differing materially in their opinion as to the age of the paper, although the signature was positively

Black v. Meyer

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PRESTON, J.

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