Schwartz v. Wright

California Supreme Court Mar 9, 1899 No. S. F. No. 843Published

Before: Pringle

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Holding. The court held that where there is a conflict of evidence regarding whether the delivery of a check was absolute or conditional, the jury's verdict must be sustained. Evidence of unperformed consideration is admissible to show that a check was not delivered, provided the payee had notice of the conditions.

Issues

Whether the delivery of the check was absolute or conditional.
Whether evidence of unperformed consideration and negotiations between third parties was admissible to prove non-delivery of the check.
Whether the trial court erred in its evidentiary rulings and instructions to the jury.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The one great point to be determined here is whether or not there was an absolute or conditional delivery of this check.”

“There is clearly conflict of evidence. The motion for new trial was denied by the court in which the trial was had, and the verdict cannot be set aside without violating the well-settled rule of this court.”

“this evidence, touching the consideration, was admissible, not as tending to show insufficiency of the consideration of a check delivered, but as showing, in a consideration unperformed, a circumstance tending strongly to show that the check was undelivered.”

Synopsis

Appeal.—Where the Evidence is Conflicting, and a motion for new trial was denied, the verdict will not be set aside.

Check.—In an Action on a Check, Defendants Denied Delivery, and in proof thereof introduced evidence showing that the cheek was made in payment of certain stock to be delivered, and entry of the other parties in the agreement into a pooling contract, and that the check was taken without consent by one of the parties, to whom it had been given for inspection. Held, that evidence of failure of the consideration for which the check was to be given was admissible as tending to show want of delivery.

Check.—Where the Payee of a Check had Notice of what was to be done by third parties before the check was to be delivered, evidence of negotiations with such third parties in the absence of the payee of the check is admissible to show nondelivery.

Evidence.—A General Objection to Evidence of a Certain Conversation as not had in the presence of one of the parties to the suit was insufficient as affecting certain offensive words used in the conversation, where there was no motion made to strike them out, and they were thereafter repeated to such party in person.

PRINGLE, C. Appeal from order denying motion for new trial and from judgment. Action brought upon the following check:

“San Francisco, Cal., Nov. 14, 1894. “Union Savings Bank of San Jose, Cal.:

“Pay to F. W. Van Reynegom, or order, $3,300—three thousand three hundred dollars.

“WM. H. WRIGHT,

“By H. W. WRIGHT, “Attorney in Fact.

“Anglo-Cala. Bank:

“Please pay.”

The jury rendered a verdict in favor of the defendant. There is a painful conflict of testimony in the case. The defense is that the check was never absolutely delivered, and that there was no completed consideration for it. The facts are peculiar. The testimony on behalf of the defendant is that William H. Wright was anxious to obtain the control of the majority of the stock of the Oceanic Phosphate Com[250]pany, and for that purpose entered into negotiations with M. C. Chapman, who undertook to put into his hands 2,707 shares of the stock, the requisite majority being 5,070 shares. Chapman and John A. Magee owned 2,461 shares, but they were in the hands of Judge Van Reynegom, who held them in pledge to secure a note of Chapman and Magee to Bayle, Laeoste & Co. They could be released and put into the pool by payment to Van Reynegom, for Bayle, Laeoste & Co., of $3,300. In order to accomplish this, W. H. Wright agreed to obtain the $3,300, if Chapman would secure other stock to make up 2,707 shares, and would complete the pool of 5,070 shares. The negotiations lasted some weeks, and before they were completed W. H. Wright went to the eastern states, leaving power of attorney with his brother, H. W. Wright, with instructions to complete the transaction. On November 14, 1894, H. W. Wright came from San Jose to San Francisco with W. I. Gill, his attorney, and met Chapman and Magee in the office of Magee. A pooling agreement was prepared in duplicate or triplicate, to be signed by stockholders for 5,070 shares of stock, including Chapman and Magee for 2,707 shares. The arrangement was complicated, and involved the preparation also of two notes by stockholders, which were to aid Wright in obtaining the required $3,300, and also a contract between Wright and Chapman and Magee, by which Wright was to be secured for his advance. The morning was consumed in arranging details, and at 2 o’clock Judge Van Reynegom was sent for to bring the stock held by him in pledge, and complete the transaction. Here the stories diverge. The statement of H. W. Wright and Gill, his attorney, is that the pooling contract was fully and freely discussed in the presence of Judge Van Reynegom and John Laeoste, of the firm of Bayle, Laeoste & Co., as part of the transaction; that Mr. Wright then explained that he had not brought any money, or any certified check, but that he could give his check upon the San Jose Union Savings Bank of San Jose, payable at the Anglo-California Bank in San Francisco, if that would be acceptable, and that he thereupon drew the check in question, and passed it over to Judge Van Reynegom for his inspection; that Van Reynegom took out the certificates of stock held by him, indorsed them, and passed them over to Mr. Gill; that 246 shares were wanting to make up the 2,707 that Chapman and Magee were to sup

Schwartz v. Wright

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