Baker v. Joseph

California Supreme Court Jul 1, 1860Published

Before: Baldwin

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Holding. The court held that the statute of limitations for a continuous trust begins to run only upon demand and breach, and that a witness cannot be impeached by evidence of prior declarations of hostility without first providing the witness an opportunity to explain those statements during cross-examination.

Issues

Whether the statute of limitations bars an action for money held in a continuous trust where no demand for repayment was made until after the statutory period.
Whether evidence of a witness's prior declarations of hostility is admissible to impeach their credibility without first cross-examining the witness regarding those statements.
Whether the trial court properly denied a motion for a new trial based on newly discovered evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The statute, of course, does not commence to run from the making of a contract, but from the breach of it; and a depository is not in default, as a general rule, until demand.”

“It is unquestionable that where a witness is sought to be impeached by proof of contradictory statements, made or alleged to have been made by him, it must be brought to the knowledge of the witness what the precise matter of these contradictions is”

“The party applying on the ground of newly discovered evidence, must make his diligence apparent; for if it is even left doubtful that he knew of the evidence, he will not succeed in his application.”

Synopsis

Where plaintiff deposits money with defendant, to be loaned out from time to time, the interest to be collected, and principal and interest held by him for plaintiff until called for, there is a continuous trust, and the Statute of Limitations does not begin to run in favor of defendant until after demand made by plaintiff. *

In such case, if defendant used the money himself, he would be like a guardian using his ward’s money, and be regarded as a borrower upon the same terms upon which he could have loaned to others.

As to whether proof of the conventional rate of interest in San Francisco during the time defendant held plaintiff’s money was admissible, stated.

An objection that one of two counts in a complaint is an equitable cause of action, and should not be tried by a jury, must be taken at the time, and cannot be urged on appeal, if not so taken.

Where a witness is sought to be impeached by proof of contradictory statements alleged to have been made by him, the precise matter of these contradictions, and the time and place of the contradictory statements must be brought to the knowledge of the witness on cross-examination.

And this rule as to evidence of contradictory statements, applies equally to evidence of declarations or acts of hostility or ill feeling on the part of the witness. There is no distinction between admitting declarations of hostility of the witness, by way of impairing the force of his testimony, and admitting contradictory statements, so far as this rule is concerned.

Where the objection to such impeaching evidence was general, and the Court excluded the testimony without assigning any reason, the Supreme Court will presume in favor of the correctness of the action of the Court below; and the appellant must show error to his prejudice, by putting his exceptions in the proper shape.

It cannot be assigned for error in the Supreme Court, that the Court below refused a nonsuit because of no demand made before suit, unless that ground of non-suit was taken below.

Verdict on contradictory proof not interfered with by the Supreme Court.

Motions for new trial on the ground of newly discovered evidence, regarded with distrust and disfavor, and the strictest showing of diligence and all other facts necessary, is required. This is especially true when the new testimony is to impeach a witness on the trial, or is merely cumulative. The party must show by his own affidavit that he did not know of this evidence, and could not by due diligence have obtained it; the affidavit of a witness is not sufficient. (In this case, the party himself was present.)

Baldwin, J. delivered the opinion of the Court —Cope, J. and Field, C. J. concurring.

This suit was brought to recover of the defendant several sums of money, which the plaintiff alleges the defendant owes him and refuses to pay. The complaint alleges that the plaintiff, being about to leave this State for the East, in April, 1854, deposited with the defendant some $6,000, to be invested by the latter for him in loans at interest, and the principal and interest to be paid to plaintiff on request. That [176]when he returned, December 1st, 1858, he demanded the money of the defendant, who refused to pay. The complaint avers that the defendant did not invest this money, but applied it to his own uses; and this fact the plaintiff ascertained since his return. A second count in the complaint is, that the defendant, as agent for plaintiff, collected some $2,700 of rents on property of plaintiff in this State, to be accounted for and paid over on request, etc.

Defendant, in his answer, denied the averments of the complaint, and set up the Statute of Limitations of three years; also set up a counter claim of $17,000, for money paid, etc. The case was tried by’ a jury, who found a verdict for the plaintiff. A motion was made for a new trial, on several grounds—for newly discovered evidence among other causes—and overruled. To the plea of the Statute of Limitations, the plaintiff demurred, and the Court sustained the demurrer.

Several errors are assigned, which we will consider in their order.

1. That the Court improperly sustained the demurrer to the plea of the Statute of Limitations. This defense is in these words : “ And for further plea in this behalf, the said defendant says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that the said defendant did not, at any time within three years next before the filing of the plaintiff’s complaint, undertake and promise, in manner and form as the plaintiff has complained against him in the first count of his said complaint.” The obvious answer to this objection is, that, according to the complaint, this money was deposited with Joseph to be loaned out, from time to time, the interest collected, and the principal and interest held and kept by him for the plaintiff, until the plaintiff called for it. This was a continuous trust. The gravamen of the action is not that tills promise to loan the money was made, but that it was broken, the plaintiff insisting that Joseph did not and would not pay over this money when demanded. But if the contract were as averred in the complaint, and the defendant received the money on this agreement, the mere failure to loan the money would not place Joseph in any better situation than if he had complied with his contract. If he chose to use this money himself, he would be like a guardian using his ward’s money, in which case he is regarded as a borrower, upon the same terms upon which he could have loaned to others. (See the case of Bryan v. Craig, 12 Ala. 358.) But whether he loaned it or not, or whatever the responsibilities incurred by him for not loaning it, the repayment of the money received was

Baker v. Joseph

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