Acme Investment Corp. v. Thompson

THE COURT.

The petition for hearing in this matter was granted in order that this court might amend the judgment entered by the District Court of Appeal of the Fourth Appellate District, otherwise the opinion written by Mr. Presiding Justice Barnard and concurred in by Associate Justice Jennings and Associate Justice Scovel, sitting

pro tempore,

is adopted.

“This is an action on a promissory note given for $487, the complaint being in the usual form. The answer admits the execution of the note; alleges that the same was obtained from the defendant by the plaintiff by means of false and fraudulent representations; and alleges that there was no consideration therefor. The court found that all of the allegations of the complaint are true, except only the allegations that the note was given for a valuable consideration and ‘that same is due and owing from defendant to plaintiff’; that no false or fraudulent representations were made by the plaintiff or its agents; and that there was no con

[337]

sideration for the note. Judgment was entered for the defendant, followed by this appeal.

“The appellant argues that the findings to the effect that the note in question was given without consideration are mere legal conclusions and not properly findings at all. While the findings upon this subject are open to criticism, we will, for the purpose of this opinion, take them as sufficient and consider the main point presented, which is that the evidence is not sufficient to sustain any such finding or conclusion, which contention we think must be sustained.

“It appears from the evidence that one Jackson was in possession of certain real property in Imperial county, under a lease dated April 15, 1926, and expiring February 1, 1927, upon which land he raised a crop of cotton during the year 1926. While the lease was not introduced in evidence, being only marked for identification, it appears from other evidence that appellant was to receive one-fourth of the crop produced, in return for the use of the land.- The respondent made certain advances to Jackson and took a crop mortgage covering this crop of cotton. After harvesting of the crop had started, an agent of the appellant who had heard that the crop was being delivered to the respondent, called upon him and asked him about the landlord’s share. This agent testified that at that time it was agreed between them that the respondent should go ahead and sell the crop and turn in one-fourth of the proceeds to the appellant. While the respondent testified he could not remember whether such an agreement was made, it is undisputed that he then said that he would come in as soon as the crop was sold and ‘make return’. The harvesting of the crop continued through the fall of 1926 and the early part of 1927 and at its conclusion the respondent came in and reported to appellant's agent the amount of the proceeds. At that time respondent and appellant’s agent took these returns and figured out ‘what the "one quarter share-would be’. The money was not paid and on September 24 and again on September 29, 1927, the appellant’s agent wrote to the respondent demanding immediate payment of the money and threatening suit. On October 1, 1927, the respondent replied as follows: