Bose v. Mills

VAN DYKE, J. Plaintiff and appellant herein brought this action to recover from defendant and respondent the sum of $1,000 with interest and attorneys’ fees alleged to be owing and unpaid to appellant by virtue of a promissory note executed by respondent. That note was dated November 1, 1948, and by it respondent bound himself to pay the said sum of $1,000 to the order of Sara D. Bose, appellant’s wife, or Herman H. Bose, appellant. The note was payable on demand.

The following appears from the evidence in the record: Appellant and Sara D. Bose were during all the time with which we are here concerned husband and wife. They lived at Long Barn in Tuolumne County where respondent ran a resort. Sara D. Bose was a part-time employee of respondent. Before this note was executed appellant and his wife had purchased war savings bonds, using their wages for that purpose. All of the bonds they purchased were payable to either of them and the bonds were kept in a metal box in their dwelling to which both had access. About the time this note was executed the wife took some of these bonds and sold them, obtaining therefor $1,000. She then loaned that sum to respondent and received from him the promissory [784]note upon which this action is based. It appears that this transaction was not disclosed by Sara to her husband and that he did not learn of it until some time in April of 1949, when he discovered the note in an old billfold tucked away beneath seldom-used household linens in a bureau drawer. Although appellant spoke to his wife about the transaction after he discovered the note, he said nothing to respondent and took no action in respect to it until on October 24th, when he mailed a letter to respondent, notifying him that he (appellant) “was the holder of a note for $1,000” against respondent which he asserted would become due and payable on October 30th following. This, he testified, was his interpretation of the due date of the note. He told respondent that the note was his (appellant’s) individual property; that payment must be made to him not later than October 31st and must be in cash. About the time he received the letter, respondent spoke to appellant about it and told him that he had already repaid the money to appellant’s wife. The record discloses that under date of September 30th respondent drew a check in favor of Mrs. Bose for the principal and interest upon the note and received from her a clearance of. the obligation dated the same day, in which she stated that the note itself had been lost or stolen and could not be returned to the maker. The document stated that Mrs. Bose had received payment in full of the obligation and ásserted that no further demands would be made upon respondent for that reason. In December, 1949, appellant began this action based upon the note, alleging it to be unpaid. After a trial before the court,' findings of fact and conclusions of law favorable to defendant were made and drawn and judgment was given that appellant take nothing and that respondent was entitled to have the note delivered up for cancellation as having been fully paid and discharged. From that judgment this appeal is taken.