Rogers v. Schulenburg

California Supreme Court Feb 20, 1896 No. L. A. No. 7Published

Before: Belcher

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Holding. A joint demurrer is properly overruled if the complaint states a cause of action against any of the defendants, and a party who endorses a nonnegotiable note becomes a guarantor regardless of when the endorsement occurred. Furthermore, findings of fact based on conflicting evidence will not be disturbed on appeal, and out-of-court statements made outside the presence of an adversary are inadmissible.

Issues

Whether a joint demurrer should be overruled if the complaint is sufficient against at least one defendant.
Whether an endorser of a nonnegotiable note becomes a guarantor regardless of the timing of the endorsement.
Whether the court may disturb findings of fact where there is a substantial conflict in the evidence.
Whether out-of-court statements made without the knowledge of an adversary are admissible as evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A joint demurrer by all of the defendants to an action is properly overruled if the complaint is good as against either of them.”

“When Daley wrote his name on the back of the note, whether it was before or after its delivery, he became a guarantor for its payment”

“The statements of a party, made without the hearing or knowledge of his adversary, are never competent evidence in his own behalf to prove the facts stated.”

Synopsis

Peeading—Joint Demurrer.—A joint demurrer is properly overruled, i£ the complaint is good against either of the parties demurring, though it may not be good as against one of them.

Non-negotiable Note — Indorsement by Third Party — Guaranty — Expression op Consideration.—A third person who writes his name on the hack of a non-negotiable note becomes a guarantor thereof, whether the indorsement is made before or after delivery; and, under the codes, it is not necessary that the consideration of the guaranty be expressed in writing, in either case.

Xd.—Presumption of Consideration—Burden of Proof.—A written instrument is presumptive evidence of a consideration; and the burden of showing a want of consideration is on the party seeking to invalidate it.

Appeal—Findings—Conflicting Evidence.—The findings cannot be disturbed upon appeal, when the evidence is conflicting.

Evidence—Declaration op Party in His Own Behalf,—The statements of a party, made without the hearing or knowledge of his adversary, are not competent evidence in his own behalf to prove the facts stated.

Belcher, C. This is an action upon a nonnegotiable promissory note for three hundred and forty dollars, made by the defendants Schulenburg and Chadwick to one Thompson, and by him assigned to the plaintiff before maturity.

The complaint avers the making, delivery, and assignment of the note in the usual form, but the onlyaverment connecting the defendant Daley therewith is: “ That thereafter, and before the maturity of said note, the said defendant, T. J„ Daley, duly indorsed said promissory note by writing on the back thereof as follows, to wit: ‘ Protest waived. T. J. Daley.’”

Defendant Chadwick suffered his default to be entered. Defendants Schulenburg and Daley filed a joint demurrer to the complaint, which was overruled. They then answered, setting up in substance that, prior to (he assignment of the note to the plaintiff, Thompson, the payee, had offered to accept from them, in full satisfaction and payment thereof, the sum of one hundred and twenty-five dollars; and that after such offer and with notice thereof plaintiff and defendants entered into an agreement whereby he was to advance and pay to Thompson for the said note the sum of one hundred and twent)r-five dollars and take an assignment thereof to himself, and they were to repay him therefor the sum so advanced, with interest thereon at the rate of ten per cent per annum from the time of his payment to Thompson, and the further sum of fifteen dollars as a bonus to him for taking up the note in the manner agreed upon; that accordingly the plaintiff paid to Thompson the sum of one hundred and twenty-five [284]dollars, and no more, for the note, and received the transfer thereof; and that the assignment of the note to plaintiff was accomplished and made in virtue of and pursuant to said agreement, and not otherwise.

To this answer a demurrer was interposed by the plaintiff and overruled. The case was then tried, and upon all the issues raised the court found against the defendants, and rendered judgment against them as prayed for in the complaint. From this judgment and an order denying their motion for a new trial the defendants Schulenburg and Daley have appealed.

1. Appellants contend that as against Daley the complaint does not state facts sufficient to constitute a cause of action, and hence that the court erred in overruling their demurrer. This contention is rested upon the fact that it does not appear when Daley indorsed the note, wdiether before or after delivery, and that no consideration for the indorsement is expressed in writing.

Rogers v. Schulenburg

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