Hogan v. Burns
Before: Vanclief
Synopsis
Appeal—Conflicting Evidence.—Where Plaintiff and Defendant are the principal witnesses in the ease, and their testimony is conflicting, a judgment for plaintiff will not be disturbed in the absence of any reason why the court should have believed defendant rather than plaintiff.
Promissory Notes.—An Answer in an Action on Notes which denies that certain of the first four notes have not been paid, and alleges that they have been “satisfied and discharged,” does not plead an accord and satisfaction.
Promissory Notes.—In Such Action It Appeared That After the date of such first four notes defendant gave plaintiff an order at the bottom of a stated account against him amounting to $70 less than the face of such notes on the attorney for the executor of a certain estate; that such attorney accepted the order, reciting in the ■acceptance that “certain moneys will in the future, in all probability, become due and payable to” defendant out of the income from certain real estate belonging to such estate, and that the order was payable only out of moneys coming from such estate, “and not claimed or affected by attachments or other claims.” Held, that, though an accord and satisfaction was pleaded, it was not error to exclude such account, order, and acceptance from the evidence in the absence of any offer to show by other evidence that they were intended or accepted as satisfaction of either of the notes, or that either the account or order had been paid.
VANCLIEF, C. Action on twelve promissory notes—two for $80 each, eight for $75 each, and two for $60 each. The answer of defendant admits the making of the notes, but alleges that each note “was without good or valid or legal con[63]sideration; that the only consideration therefor was an account for the sale and delivery by plaintiff to defendant by retail, or by the drink, of spirituous and malt liquors, wine, and cider; and that the amount of said account exceeded the sum of five dollars; but did not exceed the sum of twenty-five dollars; and that such an account constituted the only consideration for each of said notes. ’’ Further answering, the defendant denies that the first four of said notes had not" been paid, but alleges that they have been “satisfied and discharged.” The court found as follows: “All the allegations of the complaint are true. Each of the promissory notes set forth in said complaint was made to plaintiff by the defendant upon valuable consideration therefor. No part of the consideration for either of said promissory notes was the sale or delivery by plaintiff to the defendant of any liquor, spirituous or malt, or of any wine or cider, and neither one of said promissory notes has been paid, satisfied, or discharged in whole or in part”; and thereupon rendered judgment for the full amount of principal and interest of all the notes. The defendant has appealed from the judgment and from an order denying his motion for a new trial.
1. The appellant contends that the findings of fact are not justified by the evidence. There is no merit in this point. The plaintiff and defendant were the principal witnesses, and their testimony was directly in conflict upon all material issues; and no reason appears why the court should have believed the defendant rather that the plaintiff.
2. Appellant claims that the court erred in rejecting the following papers offered as evidence for the defendant:
“San Francisco, May 1, 1887.
“Joseph T. Burns to James Hogan, Dr.
“For board, lodging, goods furnished, services rendered, and in full of all claims to date, $200.
“The above is correct.
“JAMES HOGAN.-
“I have personally examined all items in the above bill, and find them correct.
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