Gavin v. Annan, Lord & Co.

Appeal from the Superior Court of the City of San Francisco.

The complaint states, that about the 30th of October, 1850, one Samuel G. Chaffe being in negotiation with the plaintiff, with the view to the consummation thereof and for value received, gave an order on the defendants for $1000 in favour of plaintiff, or order, which was duly presented to and accepted by defendants. That the original order was destroyed in the fire of 3d May last, but the following is a literal transcript.

$1000. San Francisco, Oct. 30, 1851.

Messrs. Annan, Lord & Co.

Pay to D. Gavin or order one thousand dollars after paying a previous order to yourselves of fifteen hundred dollars.

Sam’l G. Chaffe.

[Written across the face—Accepted, Annan, Lord & Co.]

That defendants paid on this order $448.58, leaving the balance still due and unpaid, and which they refuse to pay. Wherefore plaintiff asks judgment for the balance with interest and costs.

Defendants demurred for cause; 1st. that the complaintjf does not state the names of the defendants; 2d, nor a cause of action, or consideration for the acceptance; nor the amount claimed.

And answer and deny the acceptance of a draft of the tenor and import of that set forth in the complaint; and deny the execution of any such draft; and deny that they are indebted to the plaintiff in any manner whatever; and pray judgment, &c.

The case was tried by the Court, the oarties having waived a jury-

The plaintiff'proved that he, being the owner of a ship, was in negotiation with Samuel G. Chaffe and another person for the sale of it, and contracted to sell them the vessel; and in part-payment took the second order of Chaffe upon the defendants for $1000, payable after paying a previous order of $1500, out of goods in their hands and for sale on account of the drawer, which was accepted as stated. That previous to the acceptance, and previous to executing a bill of sale of the ship to the purchasers, the plaintiff called upon the defendants to know if they had full security in their hands to meet the acceptance, to which they responded in the affirmative; upon which the plaintiff executed a conveyance of the ship to the purchasers, one of whom was the said Chaffe, the drawer of the order, and accepted in payment the acceptance of the defendants.

The defendants proved by a clerk, that plaintiff called several times on defendants for payment of the order, which was refused by defendants, because the goods were not sufficient to satisfy the amount; and insisted that they had only to pay provided the goods held out; but said, the balance of the goods were at plaintiff’s service if he would be content to receive them in full. That plaintiff refused to receive them in full; but finally it was agreed that plaintiff should take the goods in full, and a receipt was so drawn, and plaintiff was required to sign it before receiving the goods, which he refused to do. Witness then advised defendants that they had better let plaintiff have the goods, as it was understood he was to execute the receipt proposed. Defendants concluded to do so, and delivered the goods to plaintiff, who finally refused to sign the receipt.