Ferguson v. McBean
Before: Haynes
Synopsis
Pleading—Allegation of Nonpayment.—A complaint alleging that plaintiff demanded payment of a specified sum, that defendant refused payment, and that the sum is due and unpaid, sufficiently alleges nonpayment of the sum alleged to be due.
Appeal.—Where the Evidence is Conflicting, the Verdict should not be disturbed.
Assignment of Contract to Purchase Land—Evidence.—Plaintiff, having made a contract to purchase land from C., assigned it to defendant, who agreed to pay plaintiff a certain sum if he purchased the land from C. Held, in an action to recover such sum, that it was competent to show the circumstances attending the making of the contract of assignment, it being disputed whether C.’s sale of the land to defendant’s stepson was under the contract between C. and plaintiff, and the relations between defendant and his stepson in regard to the entire transaction being a material issue raised by the pleadings.
Assignment of Contract to Purchase Land—Evidence.—It was proper to deny defendant’s motion to strike out plaintiff’s evidence as to conversations with a third person, not in the presence of defendant, and to retain such evidence till plaintiff’s evidence was in, as other evidence might show that such third person was authorized to represent defendant.
Assignment of Contract to Purchase Land.—Evidence that a third person agreed to pay plaintiff a part of the sum sued for was properly excluded, since defendant could not be relieved from his written obligation by such person’s agreement to pay it, unless plaintiff released him.
Assignment of Contract to Purchase Land.—Evidence that defendant’s stepson told another person that he was representing defendant, and was ready to consummate the trade, was competent to show that the purchase was made under the contract assigned to defendant.
Assignment of Contract to Purchase Land.—It was Also Competent to corroborate defendant’s statement, after the sale, that he had purchased the property.
Assignment of Contract to Purchase Land.—The Possession and production by defendant’s stepson, at the time of the transaction, of the assignment of the contract by plaintiff to defendant, were competent to show that he was defendant’s agent.
Assignment of Contract to Purchase Land.—The Admission of testimony that plaintiff said defendant was represented by his stepson at the sale was not cause for reversal, when plaintiff had already testified to the circumstances connected with the assignment of the contract, and that the stepson was a party to the assignment, though it was not so stated therein.
Assignment of Contract to Purchase Land.—Plaintiff Having Made the contract with C. personally, and having assigned it to defendant, evidence that plaintiff made the contract with 0. at the request of one B. was properly excluded, as such fact would not alter defendant’s liability.
HAYNES, C. This action was originally brought against McBean and A. Y. Bills. The defendants demurred to the original complaint upon the ground that Bills was improperly joined as a defendant. The demurrer was overruled, and, upon the trial, plaintiff had judgment. Upon appeal by defendants it was. held that the demurrer should have been sustained, and) the judgment was reversed, with leave to the plaintiff to amend her complaint: See 91 Cal. 64, 14 L. R. A. 65, 27 Pac. 518. Respondent thereupon dismissed the action as to Bills, and amended her complaint in the matters made necessary by the dismissal of the action as to Bills, but retained, in substance, all of the allegations contained in the original complaint connecting Bills with the transaction. For a statement of facts of the case, see opinion of Mr. Chief [431]Justice Beatty upon the former appeal: 91 Cal. 66,14 L. R. A. 65, 27 Pac. 518.
The only questions presented upon this appeal which were not disposed' of by the former appeal arise upon a demurrer to the amended complaint, and upon certain specifications of insufficiency of the evidence to justify the findings of fact, and upon .exceptions to the admission and exclusion of evidence. The demurrer to the amended complaint was properly overruled. The allegations that plaintiff demanded payment of a specific sum, that defendant refused to pay said sum, ‘‘ and that the same is now due and unpaid,” sufficiently allege the nonpayment of the sum alleged to be due from the defendant to the plaintiff. As to the sufficiency of the evidence to justify the findings of fact in the several particulars specified by appellant, it is sufficient to say that upon each of these findings the evidence was materially conflicting, and, under the numerous decision's of this court, cannot be disturbed.
The respondent, called as a witness in her own behalf, was asked by her counsel the following question: “State the circumstances attending the making of the contract between you and McBean, set out in the complaint, wherein you assigned to McBean your interest in the contract theretofore made by you with the Colton Land and Water Co.” It was objected by appellant that the question was irrelevant and immaterial, and not in issue in the case; that the contract was in writing, was set out in the complaint, and its execution admitted by the answer; and that evidence was inadmissible under those circumstances to prove either its contents or the circumstances under which it was executed, or that any other persons were parties to the same; and that the contract is not ambiguous. The objection was properly overruled. There were other questions in issue beside the terms and execution of the contract signed by McBean, and as to which the circumstances attending the making of the contract of assignment to McBean were both relevant and material. One of these questions was whether the sale and conveyance of the property by the Colton Land and Water Company to Bills was under the contract between the Colton Land and Water Company and respondent. If the circumstances called for by the question tended to elucidate the matter above suggested, it was material and competent. So, too, the relation between McBean and Bills in
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)