Bromberg v. Brower

YORK, J. This is an action brought by Alois Mesmer, receiver in equity of the Vernon Oil Refining Company, to collect a certain unpaid note dated October 6, 1931, for the sum of $25,924.55, signed by defendant Brower and made payable to said Vernon Oil Refining Company. Defendant denied the note constituted a part of the assets of the oil company, and denied that the receiver had any right, title, interest or estate therein, and he alleged that he had deposited with the Citizens National Trust & Savings Bank of Los Angeles, 787 shares of Texas Corporation as collateral security for payment of this note, and that no effort was made by the receiver to enforce said collateral or sell the same and apply the proceeds of sale on said note.

Appellant’s statement of the question involved in this appeal is as follows: “Can a receiver of an indemnitee enforce payment on a collateral promissory note given to indemnify against loss, when no detriment or loss has been suffered by the indemnitee or his receiver?”

In addition to this statement, appellant sets out in his brief a statement showing his grounds of appeal as follows:

1. That the finding of the court to the effect that the principal amount of $25,924.55 or interest has not been paid and the whole now remains due and unpaid, is contrary to and unsupported by the evidence.

2. That the finding of the court to the effect that the principal amount of $25,924.55 and interest is now due from the defendant to plaintiff, is contrary to and unsupported by the evidence.

3. That the court erred in overruling the defendant’s objection to the introduction of any evidence at the trial herein.

4. That the court erred in signing and filing the findings of fact and conclusions of law submitted by plaintiff and as amended by the court, and in not signing and filing in lieu thereof the findings of fact and conclusions of law submitted by the defendant.

[7015]. That the judgment entered herein is contrary to law.

6. That said judgment is not supported by and is contrary to the evidence.

There is sufficient evidence in the record to show that, although defendant Brower and one W. N. Brower, an officer of said Vernon Oil Refining Company, testified to a certain limitation as to the giving of the note, in that they claimed said note was given only by way of indemnity, nevertheless, such oral testimony was not sufficient to offset the written terms of the note itself. The evidence also shows that after said note was delivered to the oil company, the said corporation used it to obtain credit, and included it in its statement of assets for that purpose, at a time when said witness W. N. Brower and the appellant were both directors of said corporation.