Clark v. Child

California Supreme Court Nov 7, 1884 No. No. 8,435Published

Before: McKinstry

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Holding. A defendant who introduces evidence regarding the delivery of a written instrument is estopped from relying on the plaintiff's failure to deny the instrument's execution by affidavit. Where evidence shows a release was not delivered according to the parties' agreement, it does not constitute a bar to the action.

Issues

Whether a defendant is estopped from relying on an admission of a written instrument's execution when the defendant introduces evidence regarding its delivery.
Whether a release held in trust under stock board rules constitutes a bar to an action when the underlying proceeding is dismissed by agreement before the release's delivery conditions are met.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The defendant having himself introduced the evidence showing that the release was not in fact delivered, was estopped from claiming the benefit of the admission arising out of plaintiff’s failure to deny by affidavit”

“If, as shown by the testimony of defendant’s witness, it was agreed between plaintiff and defendant, for a valuable consideration, that the release should not be delivered, but should go for naught, the attempt to assert it as a bar”

Synopsis

Pleading—Answer.—'Written Release—Admission op Genuineness—Estoppel.—Where a defendant sets forth in his answer a written release as a bar to the plaintiff’s cause of action, and on the trial introduces evidence showing that such release had never been delivered, he is estopped from ■ claiming the benefit of the admission arising out of the plaintiff’s failure to deny by affidavit the genuineness and due execution of the instrument.

Written Instrument—Execution—Delivery:—The execution of a written instrument includes its delivery.

Instructions—Reversal.—A judgment will not be reversed for an error in the giving or refusing of instructions, if the losing party could not have been prejudiced thereby.

McKinstry, J. -The action is to recover the proceeds of a sale by defendant of certain stocks, the property of plaintiff. The original answer set out a release, under seal (of date July 18th, 1874), whereby plaintiff, in consideration of one dollar, as recited, remised, released, and forever discharged the appellant, defendant, of and from all demands, etc. The amended answer avers certain payments on account of the indebtedness of defendant, aggregating $1,050; and further alleges that on the first day of July, 1874, defendant paid to plaintiff, and plaintiff accepted and received from defendant, $250, in full satisfaction and discharge of the damages, liability, debt, and cause of action set out in the complaint. The plaintiff failed to file with the clerk, within ten days after service of the original answer, the affidavit provided for in section 448 of the Code of Civil Procedure. The genuineness and due execution of the release pleaded were, therefore, admitted; and the “ execution ” of a written instrument, within the meaning of the section of the code, includes its delivery. But defendant here did not ask for nonsuit, or for judgment on the pleadings; but called the plaintiff as a witness, and proceeded to examine him with reference to the release set forth in the answer. The testimony of the witness was to the effect that the release recited in the original answer ivas not, in fact, delivered to the defendant, but was given to the president of the San Francisco Stock & Exchange Board under the circumstances following :

The board had adopted certain rules, numbered 44 and 45, which read:

“ Article 44.—Arbitration Claims op Mon-Members.

“ Any person not a member of the board shall have the right to bring a claim against a member of said board, arising from any transaction in stocks or money loaned during his membership, on the condition following, and not otherwise. The person making such claim shall execute a full release of his claim against said member, duly signed, and shall deliver the same tO' the president, to be held in trust to abide the event of the suit before said board. The president shall keep the said release in trust to abide result of said suit, and shall deliver the same to the defendanton the happening of either of the three following events:. [89]First, in case the claimant shall not present his claim to the board within twenty days after executing said release ; second, in case judgment shall be rendered for said defendant by the board; third, in case the defendant shall pay or offer to pay to such claimant the amount of judgment rendered in favor of said claimant.

Clark v. Child

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