Beer v. Clifton

McFarland, J.— This action was brought to recover $3,500, with interest, costs, etc., upon a promissory note made by defendants to plaintiff on March 29, 18-90, and payable July 1, 1890. The jury returned a verdict for plaintiff for only $1,240.24; and plaintiff moved for a new trial upon the grounds of insufficiency of the evidence to justify the verdict, that the verdict is against law, and errors of law occurring at the trial, etc. The court granted a motion for a new trial, stating in its order that the motion was granted because “ the first and third instructions offered by defendants’ attorneys, and given, are erroneous, and must have been misleading to the jury.” The defendants appeal from the order granting a new trial.

The facts necessary to be stated are these: In March, 1889, the plaintiff was, and for several years before that had been, engaged in the business of keeping a country store at Covelo in Mendocino County. The defendant Weill is her nephew, and for five years prior to the time last stated had been her principal clerk and assistant in said business. Ou March 18, 1889, she sold said business, together with certain real estate, live stock, and dioses in action to the defendants, Weill and Clifton. In payment for the property sold, in addition to certain cash payments and a mortgage for $1,500 on the real property sold, they gave her seven promissory notes for $500, each payable monthly in succession, the first becoming due on November 1, 1889. These notes not having been paid as they became due, and plaintiff becoming anxious for their payment a little over a year afterward, to wit: on March 29, 1890, the said notes were taken up by the giving of a note for $3,500, signed by said defendants, Weill and Clifton, and also by the defendant, George E. White, which is the note sued on in this present action.

Among the dioses in action sold by plaintiff to Weill and Clifton on said March 18, 1889, were eleven promissory notes, •which had been given by different parties to plaintiff; and all of said eleven notes were, at the time of said sale, overdue. These notes were at the time of said sale, and being overdue as aforesaid, indorsed by said plaintiff, that is, she wrote her name on the back of said notes. Plaintiff testified that she delivered . said notes to Weill and Clifton at the time of the sale without indorsement; and that about two weeks afterwards Weill re[325]quested her to write her name on the back, saying that he could nol, collect the notes unless she did so, and that she would not have indorsed them if she had known that such indorsement would make her liable in any way for or upon said notes, and that she sold them absolutely and without any intention of being personally liable thereon; but Weill and Clifton contended, and introduced evidence to the point, that according to the terms of the sale they were to collect whatever could be collected on said eleven notes, and that whatever they could not collect after the exercise of due diligence was to be credited upon and deducted from the amount due from them to plaintiff upon the said seven promissory notes which they had given her, and consequently to be credited upon the $3,500 note sued on, which was given in lieu of said seven notes as aforesaid. Under these circumstances it was, of course, material and important for the jury, in view of the conflicting evidence, to know what, in law, was the liability which attached to plaintiff upon said eleven notes from the mere fact of her indorsement of them. And upon this point the said instructions, 1 and 3, are as follows:—