Cohen v. Kaufman

VALLÉE, J. Appeal by defendant Mrs. J. Kaufman, also known as Mrs. M. Kaufman, from a judgment for plaintiff against defendants Edward J. Kaufman and Mrs. J. Kaufman in an action on a promissory note. The complaint alleged that on May 29,1945, defendants executed to plaintiff a promissory note in the sum of $3,000, that defendants have not paid any part of the note except $800. Appellant answered, denying that she was indebted to plaintiff, and alleging want of consideration. The court found that the defendants executed the note for value received and that only $800 had- been paid thereon.

Appellant claims (1) that the finding that she received value for the execution of the note is unsupported by the evidence, (2) that the amount of $1,000 which was credited on the back of the note by respondent establishes that the demand of $2,200 was unjustified, and (3) that the court erred in permitting the defendant Edward J. Kaufman to testify as a rebuttal witness in behalf of respondent.

Plaintiff testified that on May 29, 1945, defendants handed him a promissory note in the amount of $3,000, signed by them, that on July 1,1945, $800 of the $3,000 was paid. He testified that prior to the execution of the note, he told Mr. and Mrs. Kaufman that he would not give them merchandise without a note and that both of them would have to sign it; that they all went to his attorney’s office to “get the note . . . and then they both signed it.” He stated that the merchandise was sold to “Mr. and Mrs. Kaufman”; that Mr. Kaufman moved it to a place he operated “and Mrs. Kaufman’s office, too, and store”; that later he also saw “my merchandise in their house. ’ ’

Defendant Edward J. Kaufman testified that “we went down to Mr. Cohenes office to buy the merchandise.” He also testified that he moved the merchandise to “both places. In [465]Mrs. Brod’s [appellant’s] store I gave some jewelry and stuff, and the rest of them I moved to 236 South Figueroa, and the rest of it I moved out on 1323 San Pedro Avenue”; that we still owe him $2,200 on the note.

Appellant testified that she never did business with plaintiff.

Defendant Edward J. Kaufman was called in rebuttal by plaintiff under Code of Civil Procedure, section 2055. He testified that the promissory note was signed in the office of plaintiff’s attorney, there being present, in addition to plaintiff’s lawyer, Mr. Cohen, a Mr. Phariss, and he and his wife; that Mrs. Kaufman signed the note at that time, nothing being said to her about signing as a witness only. On cross-examination he stated that after he signed the note he did not see it again until “just right now when I saw it on the table . . . I just passed by and noticed a note down there, and I knew which one I signed.”