Redemeyer v. Henley , 107 Cal. 175 ( 1895 )

Vanclief, C.

Action on a promissory note made by the defendants to plaintiff, in which judgment was rendered in favor of plaintiff by default. The defendants have appealed from the judgment on the judgment-roll which contains no bill of exceptions; and the only point made by appellant is that the complaint does not state facts sufficient to constitute a cause of action.

The following is a copy of those parts of the verified complaint which it is contended are deficient.

“ 1. That the defendants, Whitcombe Henley, Barclay Henley, and Thomas B. Henley, are now, and at all the times herein named have been, partners doing business in the county of Mendocino, state of California, under the firm name and style of ‘ W. Henley & Bros.’

“ 2. That on the 15th day of April, 1893, the said defendants, Whitcombe Henley, Barclay Henley, and Thomas B. Henley, partners doing business under the firm name of ‘ W. Henley & Bros.’ as aforesaid, by the said W. Henley, made and executed their certain promissory note in writing, ef which the following is a copy, to wit:

‘“$1,601.60. Ukiah, April 15, 1893.

“ ‘ One day after date, without grace, we, or either of us, promise to pay to A. F. Redemeyer at Ukiah, or order, the sum of sixteen hundred one and -&°T dollars, for value received, with interest thereon at the rate of ten per cent per annum from date until paid.

“ ‘ W. Henley & Bros.

“ ‘ By W. Henley.’

“And then and there delivered the same to plaintiff, and plaintiff is now the lawful owner and holder thereof.”

The substance of the objection to the complaint is that it does not show that W. Henley was authorized to make the note, because such authority is not expressly alleged nor implied in any of the express allegations. But I think it is implied in the express allegation that “ said defendants Witcombe, Barclay, and Thomas B. Henley, partners doing business under the firm name of ‘ W. Henley & Bros.’ as aforesaid, by the said W. Henley, made and executed ” the note. This allegation is not true, unless W. Henley had authority from Barclay and Thomas B. to make the note; yet its truth is admitted by the default of the defendants. There is nothing on the face of the note inconsistent with the truth of this allegation, as contended by appellants.

I think the judgment should be affirmed.

Belcher, C., and Haynes, C., concurred

For the reasons given in the foregoing opinion the judgment is affirmed.

Harrison, J., Garoutte, J., Van Fleet, J.