Tibbet v. Sue

COOPER, C. Action to recover on a promissory note for five hundred dollars and accrued interest. Judgment for plaintiff. Defendant Tom Sue appeals from the judgment and from an order denying his motion for a new trial. The appeal comes here on the judgment-roll and a hill of exceptions. Findings were filed by the court below, and it is conceded that the judgment is the legal conclusion from the facts found.

It is claimed that the evidence is insufficient to justify the decision of the court. The argument in appellant’s brief is mainly directed to the improbability of the truth of the testimony of the witnesses for respondent. As the witnesses appeared before the learned judge of the court below, where he could view them as the words fell from their lips, it was his peculiar province to pass upon their credibility, and after he has found the facts as stated by them and indorsed their testimony as true, we have no power to disturb his findings, when based upon substantial testimony.

The real issue between respondent and appellant was as to the execution of and consideration for the promissory note described in the complaint. One Bustillos was called as a witness by plaintiff, and testified that he was present in the early part of January, 1896, in the restaurant of one Dock in Bakersfield, and saw plaintiff come in and also saw two Chinamen there. That plaintiff had some money and was counting it out. That one Mefford, who was in company with witness, asked plaintiff what he was doing with the money. The witness was allowed, under the appellant’s objection, to testify that the plaintiff said: “I am loaning these Chinamen this money.” Appellant’s counsel says: “This action of the court constitutes the principal error of law relied upon for a reversal of the judgment.” The evidence was objected to upon the ground that it was hearsay and incompetent. After the testimony was in, a motion was made to strike it out, but no grounds of said motion were stated. It is now urged that the ruling was reversible error, for the reason that the conversation was not with appellant; that it' [546]does not appear that he understood what was being said, and that there is no evidence of his conduct in regard to the statement. It is shown by the evidence that appellant was present; that he can speak English imperfectly, and that he took the money and walked away. The objection to this testimony was made solely upon the grounds that it was hearsay and incompetent, and no other grounds can now be considered. We think the court did not err in admitting the testimony. The statement was made in the presence and hearing of defendant, and his silence and taking the money and walking away with it was evidence sufficient as to his conduct. Our code (Code Civ. Proc., sec. 1870), provides that, among other things, evidence may be given at the trial of “an act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto.” It is said in 1 Eice on Evidence, page 468: “Declarations or statements made in the presence of a party are received in evidence, not as evidence in themselves, but to understand what reply the party to be affected by the statement should make to the same. If he is silent when he ought to have spoken,- the presumption of acquiescence arises; in this sense, admissions may be implied from conduct.”