Keating v. Morrissey , 6 Cal. App. 163 ( 1907 )

This is an action upon a promissory note for the sum of $5,041, with interest at the rate of five per cent per annum. Said note was made and delivered by the defendant to the plaintiff in the county of San Joaquin on the sixteenth day of July, 1902, payable one year after date. The case was tried by jury, a verdict returned in favor of plaintiff for the sum of $5,631.33, representing the principal and interest on said note, and a judgment entered accordingly.

The answer sets out with minute particularity the circumstances which, it is alleged, attended the transaction resulting in the execution of the note, the substance of all which is that said note was secured from the defendant by the plaintiff by means of threats or duress, and that, therefore, there was no valid consideration for the same. The defendant prosecutes this appeal from the order denying her motion for a new trial, upon a bill of exceptions.

The defense relied upon for the defeat of the action, as must be inferred from the allegations of the answer, as we have briefly stated them, was that the note which forms the basis of the suit was without sufficient or any consideration. We will proceed to an examination of the record for the purpose of determining this question.

The undisputed facts of the case, as developed by the proofs, are: Several years prior to the execution of the note which is the subject of this suit, the plaintiff made Walter Morrissey, a son of the defendant, her agent, with full power to negotiate loans of money for her. While so acting in that capacity for plaintiff, said Morrissey loaned, or pretended to have loaned, certain sums of money to different parties, taking in the name of plaintiff what purported to be their promissory notes therefor. These notes — fourteen in number — were delivered to the plaintiff by Morrissey. All of these notes, with the exception of one which was made so as to mature one year after the date of its execution, were made payable "one day after date," and represented amounts varying from $150 to $800, the sum total of the money so claimed to have been loaned being $5,041. Some of these notes were made in the year 1899, others in year 1900 and one in the year 1901. Three of these notes bear upon the backs thereof an indorsement, signed by the plaintiff, acknowledging the receipt of the interest which had accrued thereon. The plaintiff did not, at the several times at which she received said notes from Morrissey, either personally or by reputation, know persons bearing the names represented by the signatures subscribed to the notes. A short time before the making and delivery of the note by the defendant to the plaintiff, Morrissey, without previously apprising the plaintiff or any of his other acquaintances of his intention to do so, departed from San Joaquin county, or at least could not be found at his home or in that county. The plaintiff was desirous of securing the payment of the interest which was due upon the notes, and, not being able to find her agent, and, as stated, not knowing anything of or about the parties who were represented to have made the notes, proceeded to make an investigation into the matter. She sought the aid and advice of a Mr. Crane, of Stockton, and, as he was not acquainted with any persons of the names attached to the notes as representing the makers thereof, the great register and the tax-roll of the county were carefully examined, with the result that neither contained the names attached to the notes. Thereupon the plaintiff called at the residence of the defendant and obtained from her the note, to secure the payment of which this action was instituted.

At the trial, the plaintiff offered, and the same was received in evidence, the note in dispute, and then rested her case. This constituted, of course, prima facie proof of all that the note purported to be. The presumption is that the note was given for a sufficient consideration. (Code Civ. Proc., sec. 1963, subd. 21; Civ. Code, sec. 1614) The burden of proving want of consideration sufficient to support the note was upon the defendant. (Civ. Code, sec. 1615) The defendant, having been sworn as a witness, gave testimony directed to the support of the allegations of her answer, stating that on both occasions of the visit of the plaintiff at her residence, the latter declared that she had investigated the great register and tax-roll of the county, and that neither contained names corresponding with those attached to the notes delivered to her by Walter Morrissey; that she submitted to the defendant for inspection the fourteen notes, said they were forgeries and that Walter was guilty of forgery, and that unless she was reimbursed or indemnified against the loss which it was probable she would sustain through the criminal acts of said Walter, she would cause him to be arrested and prosecuted for a felony and punished therefor by imprisonment in the state penitentiary. The defendant further testified that when the conversations occurred she was and had been for some time prior thereto in ill-health, and, keenly realizing the humiliation and chagrin which the disgrace occasioned by the prosecution of her son upon a felony charge would entail upon herself and her family, and influenced by no other motive or consideration, readily agreed, on the occasion of the first interview between plaintiff and herself, to adjust the matter. On the following day, so defendant testified, the plaintiff returned to the residence of the former, and, presenting to her a printed blank form of a promissory note, requested her to fill it out and sign it, at the same time repeating her threat to prosecute Walter unless the note was given by defendant. The defendant thereupon filled out the note for the sum of $5,041 with interest at the rate of five per cent and attached her signature thereto. Upon the suggestion of the plaintiff the note was executed for the sum of $5,041, although the interest due on the fourteen notes turned over to plaintiff by Walter Morrissey amounted to the sum of $600. Plaintiff waived her right to said interest, saying to the defendant that she would be satisfied with a note for the principal sum so obtained from her by Walter. A majority of these fourteen notes called for interest at the rate of eight per cent per annum — the remainder provided for interest at the rate of nine and ten per cent. One of the fourteen notes, so delivered to plaintiff by said Walter, purported to have been executed by "W. A. Morrissey" and one "Geo. L. Brown," and the defendant, while under cross-examination as a witness, admitted that her son's name was "W. A. Morrissey" and that the signature to the note of which we are speaking appeared to be in the handwriting of her son. The defendant's version of the transaction was corroborated to some extent by her daughter, who testified that, being in a room adjoining the one in which occurred the conversation between the parties on the day upon which the note was made, she overheard the plaintiff say "that if a paper was not signed, she would have my brother Walter arrested." At the conclusion of the testimony thus given on behalf of the defendant, the defense rested.

The plaintiff was sworn as a witness in rebuttal, and not only denied making the threats to which the defendant and her daughter testified or using any language from which it might be inferred that she threatened to prosecute Walter for or even accused him of committing forgery, but also gave, in full and in detail, what she claimed to have been said by both herself and the defendant during the course of the only conversations held between the parties involving the transaction resulting in the execution of the note. She was exhaustively cross-examined, but nothing was thus brought out showing affirmatively or otherwise that there was not a valid consideration for the note. In other words, there was nothing stated by her as a witness which tended affirmatively to overcome the presumption of a consideration. Among other things, she declared that the defendant, in the first conversation, said that she had previously made efforts to secure for Walter the necessary money with which to reimburse the plaintiff, thus showing, at least, that the defendant knew of the financial transactions between her son and the plaintiff, and that she had before the conversations formed an intention to aid Walter in discharging his obligation to plaintiff. This part of the conversation was not disputed.

It is only elementary to say that the jury, or court trying an issue of fact, as the exclusive judge of the weight of all evidence submitted upon such issue and of the credibility of the witnesses, has the right to discredit the witnesses or disregard altogether evidence offered in support of a material issue in the case. And in the case at bar it was within the exclusive province of the jury to declare whether the evidence offered to overcome the presumption of consideration for the note was of sufficient strength to do so or not. Having determined that it was not, the verdict so returned is, as to the facts, unimpeachable, so far as this court is concerned. A court or jury is not bound to believe an interested witness as against a presumption if the latter satisfies its mind. (Code Civ. Proc., sec. 2061, subd. 2; Adams v. Hopkins, 144 Cal. 36, [77 P. 712]; People v. Milner, 122 Cal. 179, [54 P. 833].) In the last-mentioned case, the court, through Mr. Justice Henshaw, thus states the rule: "By section 2061, subdivision 2, of the Code of Civil Procedure, jurors are to be instructed 'that they are not bound to decide in conformity with the declarations of any number of witnesses which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds.' In this is a distinct recognition of the facts: 1. That a presumption is evidence; and 2. That it is evidence which may outweigh the positive testimony of witnesses against it. It has been said that disputable presumptions are allowed to stand not against the facts they represent, but in lieu of proof of the facts, and that when the fact is proven contrary to the presumption, no conflict arises, but the presumption is simply overcome and dispelled. (Citing Savings etc. Soc. v. Burnett, 106 Cal. 514, [39 P. 922].) This is true. Against a proved fact, or a fact admitted, a disputable presumption has no weight, but where it is undertaken to prove the fact against the presumption, it still remains with the jury to say whether or not the fact has been proven; and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption."

It is, of course, at once to be conceded that a note executed in consideration of a promise to refrain from prosecuting a person for a felony would be absolutely void, for such a contract would be opposed to public morals as well as public policy. In fact, such a consideration in this case, if a forgery had been committed by Walter, would itself constitute or involve the commission of a crime. But, as we have indicated, the jury found against the contention of the defendant as to the circumstances under which the note was given, and we are bound by that finding. It is also to be admitted that if there is shown by the evidence, either by presumptive or positive proof, a valid consideration whatever for the note — if for instance, the note was signed upon an agreement or promise upon the part of the payee that she would refrain from instituting suit on the one note of the fourteen bearing the signature of Walter Morrissey — there would then be in law a sufficient consideration for the support of the note, for "the law will not attempt to measure the amount or weigh the quantum of the consideration." (Whelan v. Swain,132 Cal. 391, [64 P. 560]; Pillans v. Mierop, Lang. S.C.L. Cont. 177.) We think the evidence, both circumstantial and direct, fairly warrants the inference that Mrs. Morrissey, in executing the note, was influenced by the consideration that, for so doing, the plaintiff would forbear bringing a civil action against her son for the recovery of the money due plaintiff from him. If the facts of the transactions between plaintiff and Walter were such as the record seems to indicate them to have been, it is just as logical to infer that Mrs. Morrissey was almost as much in dread of the consequences of a civil as a criminal action, for it is only a response to the natural sentiment and love of a mother that she should spare no efforts to save her son from the disgrace and loss of confidence of the public generally which would follow the exposure through a lawsuit of bad faith and dishonesty in him in his business dealings with another party. Besides, the desire to save herself and family and family name from being linked with transactions of a shady nature or involving fraud or the elements of a public crime would serve as a strong incentive or inducement in a mother to prevent the institution of a civil action which would expose to the public the questionable circumstances giving rise to the suit. But, as we have declared, we are not called upon to hunt for the specific reasons which moved the defendant in signing the note. It is enough to know that, after all the evidence was introduced and considered, the jurors, guided presumably by all the criteria by which the law says they must be governed in weighing evidence, decided that the presumption of a sufficient consideration for the support of the instrument was not dispelled, or that such presumption satisfied their minds as against the other evidence which failed to possess such persuasive power.

We have consulted with painstaking care all the authorities cited by counsel representing both sides of this controversy. There is no conflict between the views here and those expressed in the cases to which our attention has been called There is a large number of specifications of alleged error, involving rulings of the court in the reception and rejection of evidence and in the giving and refusal of instructions. It would require unnecessary labor to give all the assignments of error special notice. We may say, however, that we have given much time to an examination of the record and to a consideration of all the points urged, and we may state, generally, that we think the court carefully, fully and correctly declared to the jury the law applicable to the issues and the facts, and that in the rulings upon the reception and rejection of evidence we find nothing which in any degree prejudiced the rights of appellant. It is noticeable that in all instances where questions were propounded to a witness and to which objections were sustained, the same questions to the same witness were at some other time during her examination allowed. The rulings of the court were, therefore, not erroneous. We think the case was fairly tried, and that the appellant, therefore, suffered no prejudice either from the rulings of the court upon the admission and rejection of testimony, or from the giving and refusing of instructions.

The order is affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on August 29, 1907, and the following opinion was then rendered thereon: