Lopez v. Macias

SHINN, J. Defendant Henry Macias gave plaintiff Joe R. Lopez his promissory note for $2,000. The note not having been paid, Lopez brought this action and recovered judgment for the principal amount and interest, and attorney’s fees of $400; also for $152, money loaned to defendant. Defendant’s answer admitted the execution of the note, but pleaded that it had been settled through a later transaction, which is described in the answer as follows: That in January, 1941, plaintiff Lopez gave his promissory note for $4,000 to one Salud Savilla, and that in April, 1944, an agreement was entered into between plaintiff and defendant, with the consent and approval of said Savilla, that plaintiff would deliver to said Savilla a pick-up truck, would also deliver to defendant herein a receipt in full for all sums due plaintiff from defendant, and that in return defendant would deliver to plaintiff as fully paid the $4,000 note, theretofore given to Savilla. Defendant also filed a cross-complaint, in which he alleged the execution of the $4,000 note to Savilla, that it had been assigned to him, had not been paid, and he prayed for judgment on the note in the sum of $4,000, interest and attorney’s fees. Plaintiff’s answer to the cross-complaint denied that he had executed the alleged note for $4,000. The court found in favor of plaintiff and cross-defendant upon all of the issues raised by the complaint and answer, and the cross-complaint and answer thereto. The [139]court therefore found that the alleged $4,000 note had not been executed and that no agreement had been made between plaintiff and defendant for surrender by defendant to plaintiff of the $2,000 note. A reversal of the judgment is sought upon the ground that the evidence was insufficient to justify the findings.

The execution of the $2,000 note having been admitted, and the defense of payment having consisted only of the alleged agreement which we have mentioned, we assume that the court was principally concerned with the transactions between the parties which were alleged to have led to the settlement. Salud Savilla testified through an interpreter. He was questioned concerning the alleged $4,000 note and the consideration for which it was given. He testified that he gave Lopez $200 in 1940; that he later gave him $300; that in the same year he gave him “about $400 or $300,” he did not remember which; that he “kept on giving him as he asked for more,” and that he gave Lopez $750 in 1941; that this made up a total of $4,000 and that Lopez gave him a note in January, 1941, in the presence of one Perez; that all the sums were given to Lopez in cash; that he, Savilla, had no bank account, and sometimes money was given to Lopez in the presence of other persons; that money was given to him in cash from a box in which he kept it; that he had not worked for a number of years and had last worked in 1937, hauling fertilizer, at which he made about $100 a week. He further testified that on or about the 14th of April, 1944, Lopez came to his house and asked him for the note, saying that Salud should give it to him, “that he had already arranged with my boy Macias” and that he gave him the note, although Lopez never paid him the $4,000. He testified that Perez was present at the time. The witness did not attempt to state when any further sums were advanced to Lopez and apparently had kept no account of any sums advanced. No explanation was made as to why he should have been loaning money to Lopez.