Platt v. Havens

California Supreme Court Dec 14, 1897 No. S. F. No. 729Published

Before: Searls

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Holding. The court held that an action to recover money on a promissory note and for breach of contract is an action at law, entitling the defendant to a jury trial, and that such right was not waived by the parties' stipulation to set a trial date.

Issues

Whether an action to recover on a promissory note and for breach of contract constitutes an action at law entitling the defendant to a jury trial.
Whether the defendant waived the right to a jury trial by stipulating to a trial date or by failing to demand a jury at the time the case was set for trial.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The action, is to all intents and purposes one at law to recover money upon a promissory note, and for the breach of the contract entered into simultaneously therewith.”

“We think, therefore, that the court erred in holding, as it did, that the cause was one in which the parties were not entitled to a jury trial.”

“It was held in an early case (Smith v. Polack, 2 Cal. 92) that the right of trial by jury cannot be waived by implication.”

Synopsis

Jury—Action on Contract.—An action to recover money upon a promissory note, and for the breach of a contract entered into simultaneously therewith, in which no equitable issues are raised, is an action at law, in which the defendant is entitled to a jury trial.

Id.—Waiver of Jury.—A stipulation to set the action for trial on a day certain before a department of the superior court then known to be engaged in the trial of causes without a jury is not a waiver of the right to a trial by jury. Such right cannot be waived by implication.

SEARLS, C. Appeal from a judgment of the superior court in and for the city and county of San Francisco in favor of plaintiff for $2,628.85, upon a promissory note made by defendant for $2,500, bearing interest after maturity at eight per cent per annum, and dated August 21, 1894. Accompanying the note rvas an agreement executed by the patties of which the following is a copy:

“Agreement.

“This agreement, made by and between H. B. Havens and A. G. Platt, both of San Francisco, Cal., witnesseth:

“That the said H. B. Havens hereby sells to said A. G. Platt twelve thousand five hundred (12,500) shares of the Crescent-Mining Company stock, for the sum of five thousand dollars ($5,000), payments to be made and stock to be delivered as follows:

“H. B. Havens "will deliver six thousand two hundred and fifty shares of the stock upon the signing of this agreement and the payment of tavo thousand five hundred dollars ($2,500) in cash. The balance, six thousand two hundred and fifty shares of stock, Avill be placed in escroAV with Mr. A. IC. Durbrow, and upon the payment to him of the balance of the amount due, viz., two thousand five hundred dollars ($2,500), this stock shall be delivered to A. G. Platt-—the payment of this $2,500 to be made on or before August 21, 1895.

“Any dividends that may be declared on the said six thousand two hundred and fifty shares of stock are to be paid in to Mr,. . Durbrow and applied upon the balance due on said stock in escrow, said amounts to be subject to order of H. B. Havens.

“It being agreed that said A. G. Platt shall at any time during the year stated have the privilege of paying up the amount due on the stock in escrow, and thereafter receive any dividends that may be declared on said stock.

“It is also understood and agreed to by the parties to this agreement, that said H. B. Havens shall, at any time on or before August 21, 1895, have the privilege of offering A. G. Platt the sum of $2,500 and interest at the rate of eight per cent per annum from the date of this agreement for six thousand two-hundred and fifty shares" of stock of said Crescent Mining Company, and, should said A. G. Platt refuse such offer then the said' [246]A. G. Platt shall relieve said H. B. Havens from any future liability in connection with this transaction.

Platt v. Havens

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