O'Conor v. Clarke

PER CURIAM. This is an action upon a bill of exchange, and the material facts of the case are as follows: On August 12, 1890, Livingston, Clarke & Co. drew the said bill of exchange on the Pacific Hardware Company, payable to their own order ninety days after date; and on the twenty-seventh day of that month the same was accepted by the drawee, “payable at office Sather Banking Company, San Francisco, Calif. ’ ’ Thereafter, and before the maturity thereof, the defendants W. H. Clarke, Frank A. Kimball, Sidney Selover, and J. B. Livingston indorsed the said bill of exchange, to enable the drawers to negotiate the same and obtain money thereon; and thereupon Livingston, Clarke & Co. indorsed the said bill, and sold, assigned and transferred the same to the Sather Banking Company. On November 8, 1890, the indorsers, Clarke, Kimball, Selover and Livingston, by an instrument in writing, signed by them, waived demand, protest and notice of protest of and upon the said bill of exchange; and thereafter in January, 1891, the same was for value sold, assigned and delivered by the Sather Banking Company to the Consolidated National Bank of San Diego, which has ever since been the owner and holder thereof. Interest on the said bill of exchange was paid by the Pacific Hardware Company up to March 10, 1893, but no other payments of principal or interest have ever been made. On November 16, 1893, the plaintiff, as duly appointed and qualified receiver of the Consolidated National Bank, commenced this action against the drawers, drawee and four indorsers of the said bill of exchange, to recover the principal and interest still due and unpaid on the same. All of the defendants were duly served with summons, but only the defendant Kimball appeared to contest the plaintiff’s right to recover. He demurred to the complaint, and, his demurrer being overruled, answered, setting up several separate defenses to the action. At the commencement of the trial, the plaintiff moved the court to dismiss the action as to the defendants Livingston, Clarke & Co., and as to Livingston and Clarke individually; and the motion was granted, against the objection of defendant Kimball. And, at the conclusion of the trial, the court found upon all the issues raised in favor of the plaintiff, and gave judgment [325]against the defendants the Pacific Hardware Company, Sidney Selover and Frank A. Kimball, for the full amount due on the said bill of exchange. From this judgment and an order denying his motion for a new trial the defendant Kim-ball appeals.

1. The demurrer to the complaint was properly overruled.* The pleading stated facts sufficient to constitute a cause of action, and there was no uncertainty in any of the particulars pointed out which would authorize a reversal.