Whiting & Marshall v. Steen

McKEE, J. Appeal from an order granting a new trial.

All presumptions are in favor of the correctness of the order, and the appellants in error must show, clearly and affirmatively, by the record of the ease, that the order is erroneous: Clark v. Sawyer, 48 Cal. 133; Moore v. Massini, 43 Cal. 389; People v. Best, 39 Cal. 690.

It is contended that the order is erroneous, because the court found: ‘ ‘ That the promissory note, which constitutes the cause of action, was made and delivered by the defendant in consideration of the adjustment, at the amount in said note set forth, of an open and unliquidated account, then existing between the Glasgow Iron and Metal Importing Company, for whom the payee named in said note was then and there the agent, and the satisfaction of such account by the credit against the same of the said note”; and, being found on that consideration, it was not permissible to prove by parol evidence the defense set up in the answer.

[176]But the record discloses the fact that the finding upon the question of consideration was not sustained by the evidence. There is no conflict in the evidence.

As it appears from the record, the ease arises out of an action upon a promissory note for two thousand dollars, which the defendant made upon the 10th of April, 1879, payable one day after date to the order of B. C. Marshall. B. C. Marshall, although the nominal payee, was not the real owner of the note. It was obtained from the defendant for the Glasgow Iron and Metal Importing Company, a concern of which John Marshall, one of the plaintiffs in the case, and the father of B. C. Marshall, was then the sole proprietor. But contemplating making a change in the firm by bringing in a partner, he sent his son from Glasgow, in Scotland, to settle up the past transactions of the concern by collecting the moneys due, or taking promissory notes. The defendant was a party to one of these transactions. He, it appears, had received from the company in December, 1877, a quantity of old machinery, including a steam-engine, which he verbally agreed to repair and sell, in pieces and lots, from time to time, as best he could, until he had realized from the sales and paid from the proceeds the sum of two thousand six hundred dollars; and whatever remained of the machinery or proceeds of sales after the payment of that sum to the company was to be retained by him. Before the date of the note he had made some sales, and had paid to the company six hundred dollars, leaving a balance of two thousand dollars to be realized and paid according to the terms of the agreement between himself and the company.