Dorner v. Heffner

CRAIL, P. J. This is an appeal from a judgment against the defendant on a so-called subscription agreement, herein sometimes called exhibit 1, which was signed by certain stockholders of the German American Savings Bank of Los Angeles and by which they agreed to pay to the Los Angeles Clearing House Association the sums set opposite their respective names upon terms therein set out. The plaintiff sued as assignee of the clearing house as to the subscription of the defendant Heffner.

Exhibit 1 in the form as drafted by the clearing house required the subscribing stockholders to pay “on or before thirty (30) days from” June 20, 1933. Before the defendant signed the instrument he struck out the figures “30” and wrote above them in ink “90”, and one of the other stockholders wrote above the place prepared for the signatures of the subscribing stockholders the following: ‘£ The undersigned shall not be obligated unless at least $75,000.00 have been signed and if less than 75,000.00 sign, then the undersigned subscriptions are void.” There were several copies of the original draft of exhibit 1, but the changes, referred to, were made on only the one copy. The purpose of exhibit 1 was to provide a way "whereby the clearing house would take over all the assets of the bank and pay to the bank’s depositors their deposits in full. The program proceeded with more or less inconvenience and difficulty. Mr. Heffner left the city and could not be found. The association demanded that the $75,000 be paid in cash and all of the $75,000 was paid in cash except the part subscribed by the defendant. In order to facilitate matters the plaintiff guaranteed to the clearing house that the defendant’s subscription would be paid. The liquidation of the bank proceeded substantially as planned. At the end of the 90 days the defendant refused to pay the amount of his subscription, and thereupon the association assigned to the plaintiff its right in said subscription in exchange for the amount due from the defendant which was paid to it by plaintiff.

The first contention of the defendant is that as to him there was no delivery or acceptance of exhibit 1. Whether there was or was not such a delivery and acceptance was a question of fact for the fact finder, which was determined [100]adversely to the defendant on substantial evidence. The president of the clearing house testified denying the testimony of the defendant to the effect that he had withdrawn or canceled the subscription. It is not within the province of this court to weigh the testimony nor to determine where the preponderance of evidence lies.