Bierce v. Red Bluff Hotel Co.

By the Court, Rhodes, J.: It was a material issue in this case, whether the plaintiffs took the note and mortgage in suit, with notice that they were made on a settlement between Byers, the plaintiffs’ assignor, and the Red Bluff Hotel Company, in respect to a certain contract theretofore entered into between them, and that such contract had been assigned, or pledged, by Byers to Doll & Simpson before such settlement, and was held by them when the settlement was made. The finding upon that issue was as follows : “ It was stipulated, in open Court, by the attorneys of the Red Bluff Hotel Company and Gr. W. Hoag, that they would waive the defense that the note was not due ; and further, that the same was transferred to them (Bierce & Powell) without any knowledge or notice, on their part, of the transactions out of which the debt grew, or of the fact that Byers had pledged the five thousand dollar contract to Doll & Simpson. Plaintiffs are therefore bona fide holders for a valuable consideration.” The defendants, in their motion for a new trial, assigned, as one of the grounds, that the evidence was insufficient to justify the finding, and under it specified that there was no evidence of such stipulation. The statement having been settled, the motion was called up for hearing, and denied; and in the order denying the motion, the following statement and decision was made: “ Upon hearing of the motion, the attention was called to an error in the findings drawn by the. attorney, the findings as filed making it appear that there was a' stipulation in Court between the parties, agreeing that the note in action was transferred by Byers to the plaintiffs without notice of any of the equities existing between Byers and the hotel company, or Hoag, or Doll & Simpson. The Court ruled that such finding was an error, when stated as a stipulation, but would be correct when stated as a finding of the Court from the evidence, and that this correction would be made in ruling upon the motion for a new trial, and is now so corrected, and to this ruling of the Court defendants then and there excepted.”

[164]The defendants make the point that the Court had no authority to amend the finding, and that the question as to granting a new trial must be passed upon as it would be had the amendment not been made. But it is unnecessary to express any opinion upon the question as to the power of the Court to make the amendment, for conceding it to have been erroneous, the statement shows that it was not productive of any injury to the defendants. In the statement the defendants specify not only that there was no evidence of the alleged stipulation, but also state as one of the specifications of the insufficiency of the evidence to justify the finding that: “The Court finds that plaintiffs are bona fide holders of said note for a valuable consideration without notice, whereas the evidence of L. W. Elliott and J. Combs (uncontradicted) fully shows that at the time of the transaction, out of which the note grew, and at the time the note and mortgage were executed, he was the authorized and acting attorney and counsel of the said plaintiffs, and took part in said transactions on behalf of plaintiffs, as such attorney and counsel.” This we understand to be substantially a specification of the insufficiency of the evidence to justify the finding that the plaintiffs took the assignment without notice, and as no objection is made by the other side, we shall treat the matter as if such fact was actually or presumptively found. The statement, as prepared and settled, contains evidence applicable to this point alone, and the usual presumption will be indulged in that it contains ,all the evidence necessary to explain the point specified. This brings up for consideration the question whether the evidence was sufficient to support the finding, on the point of notice to the plaintiffs^