Corcoran v. Doll

By the Court, Sanderson, J.: I. The objection to the judgment on the ground that it includes the interest and directs that the judgment shall draw interest at the rate of one and a half per cent is not tenable. It has been repeatedly held that it is not error to include principal and interest in the judgment, and direct that thereafter the whole sum shall draw the same rate of interest which the principal drew by the terms of the contract. (Guy v. Franklin, 5 Cal. 416; Emeric v. Tams, 6 Cal. 155; McCann v. Lewis, 9 Cal. 247; Mount v. Chapman, 9 Cal. 297.) The judgment not being by default, but upon answer and after trial, the fact that the complaint does not ask for interest upon the judgment is' of no consequence. Where the judgment is upon a trial, the Court may grant any relief which is within the issue, notwithstanding it may not be included in the prayer of the complaint. (Lane v. Gluckauf, 28 Cal. 294.)

II. The objection that the note was improperly admitted without evidence of the genuineness of the signature, is also without substantial foundation. The action is upon the note, and the complaint contains a copy, and the answer is not verified. Where such are the conditions, the due execution of the note is admitted. (Prac. Act. Sec. 53.)

III. The point that the note ought not to have been admitted in evidence until after, the plaintiff had accounted for the erasures appearing upon the face of it is also untenable. The four hundred and forty-eighth section of the Practice Act applies to a case where the alteration has been made, or appears to have been made, after the execution of the instrument, and where the alteration is as to a part of the instrument which is material to the question in dispute. The note does not match the first of these conditions. It does not appear to have been altered after its execution. The note is not in writing, but in print. As [89]printed, it is payable “ at the banking house of Doll & Simpson, in Red Bluff,” and the interest “payable monthly quarterly.” The place of payment and the word “ monthly ” are erased by a line in red ink drawn through them. The use of both the words “ monthly quarterly ” in the printed form is manifestly either a misprint or they were both inserted with the intent that one or the other should be erased when the form should be put in use, for it would be absurd to provide that the interest should be payable both monthly and quarterly, and it certainly would be difficult of performance without paying interest twice at the agreed rate. Had the note been in writing and not in print there might be some ground for saying that the words “ at the banking house of Doll & Simpson, in Red Bluff,” were erased after the execution of the note, or so appeared. But in view of the fact that a printed form was used, which could not have been printed especially for the use to which it was put, and must have been printed prior to the time the contract in suit was made; and in view of the fact that the erasure of the word “monthly,” which was incontestibly made prior to the execution, is in the same kind of ink, leaves no plausible reason for saying that the note was altered, or that it has the appearance of having been altered after it was executed. Where printed forms are used, they frequently have to be altered to suit the terms of the contract, and where an alteration is made only as to the printed matter the presumption is that it was made prior to the execution of the contract, and made to suit it to the terms agreed upon between the parties.