Kunz v. California Trona Co.

LORIGAN, J.

This is the appeal referred to in the opinion filed this day in the other appeals in the case of

John F. Runs,

plaintiff and respondent, v.

California Trona Company et al.,

defendants and appellants, (S. F. No. 6901),

ante,

p. 348, [146 Pac. 883], and reference is made to the opinion on that appeal for a more particular statement of the circumstances under which this and the actions embraced therein were tried in the superior court. This action was to recover on one of the three promissory notes mentioned in the appeal in the other cases—the note of January 5, 19-11, for the sum of five hundred dollars. The pleadings and issues between the .

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plaintiff and defendants as to this note are the same as there. The actions were all tried together and the points made for a reversal of the judgment and order denying a new trial as far as the right of the plaintiff to recover on the note in this action is concerned, are identical with those presented and considered in the other appeals and for the reasons therein given the judgment in favor of the plaintiff and the order denying the motion of the defendant for a new trial are affirmed.

This appeal, however, involves questions other than those arising between plaintiff and defendant respecting the note sued on. After the defendants had answered the complaint a stipulation was entered into between them and the plaintiff that an order of court might be made bringing in one E. H. Merrill, the payee and indorser to the plaintiff of the note sued on, as a party defendant, and to that end that a cross-complaint might be filed by the defendant California Trona Company and served on said Merrill as cross-defendant. The court so ordered and a cross-complaint was accordingly filed by the California Trona Company against Merrill alleging that about December 27, 1910, he had received from the Western Securities Company for and on behalf of the cross-complainant, the Trona Company, the sum of ten thousand dollars; that he had paid cross-complainant two thousand five hundred dollars thereof of which five hundred dollars was paid when the note sued on in the complaint in the action was executed and delivered to Merrill by said Trona Company; that there never was any consideration for said note; that it was given on the receipt of said five hundred dollars under a mistaken assumption of the officers of the cross-complainant company that said payment ivas a loan; that seven thousand five hundred dollars was still due, owing, and unpaid from said Merrill to the cross-complainant company, and prayed judgment against him for that amount. Merrill appeared and answered the cross-complaint denying its allegations. Under the issues made by the cross-complaint and answer thereto the trial court gave judgment for the cross-defendant Merrill against the Trona Company and the latter appealed from that judgment and an order denying its motion for a new trial, as well as from the judgment against it in favor of the plaintiff.