DocketNumber: No. 19,232
Citation Numbers: 4 Cal. Unrep. 429, 35 P. 559
Judges: Haynes
Filed Date: 1/22/1894
Status: Precedential
Modified Date: 1/12/2023
This action was originally brought against McBean and A. Y. Bills. The defendants demurred to the original complaint upon the ground that Bills was improperly joined as a defendant. The demurrer was overruled, and, upon the trial, plaintiff had judgment. Upon appeal by defendants it was. held that the demurrer should have been sustained, and) the judgment was reversed, with leave to the plaintiff to amend her complaint: See 91 Cal. 64, 14 L. R. A. 65, 27 Pac. 518. Respondent thereupon dismissed the action as to Bills, and amended her complaint in the matters made necessary by the dismissal of the action as to Bills, but retained, in substance, all of the allegations contained in the original complaint connecting Bills with the transaction. For a statement of facts of the case, see opinion of Mr. Chief
The only questions presented upon this appeal which were not disposed' of by the former appeal arise upon a demurrer to the amended complaint, and upon certain specifications of insufficiency of the evidence to justify the findings of fact, and upon .exceptions to the admission and exclusion of evidence. The demurrer to the amended complaint was properly overruled. The allegations that plaintiff demanded payment of a specific sum, that defendant refused to pay said sum, ‘‘ and that the same is now due and unpaid,” sufficiently allege the nonpayment of the sum alleged to be due from the defendant to the plaintiff. As to the sufficiency of the evidence to justify the findings of fact in the several particulars specified by appellant, it is sufficient to say that upon each of these findings the evidence was materially conflicting, and, under the numerous decision's of this court, cannot be disturbed.
The respondent, called as a witness in her own behalf, was asked by her counsel the following question: “State the circumstances attending the making of the contract between you and McBean, set out in the complaint, wherein you assigned to McBean your interest in the contract theretofore made by you with the Colton Land and Water Co.” It was objected by appellant that the question was irrelevant and immaterial, and not in issue in the case; that the contract was in writing, was set out in the complaint, and its execution admitted by the answer; and that evidence was inadmissible under those circumstances to prove either its contents or the circumstances under which it was executed, or that any other persons were parties to the same; and that the contract is not ambiguous. The objection was properly overruled. There were other questions in issue beside the terms and execution of the contract signed by McBean, and as to which the circumstances attending the making of the contract of assignment to McBean were both relevant and material. One of these questions was whether the sale and conveyance of the property by the Colton Land and Water Company to Bills was under the contract between the Colton Land and Water Company and respondent. If the circumstances called for by the question tended to elucidate the matter above suggested, it was material and competent. So, too, the relation between McBean and Bills in
Respondent was asked certain questions in chief as to conversations with Bills not in the presence of McBean, to which objections were made. The court overruled these objections, saying that “any conversation with Bills does not bind McBean unless he is connected with it. It is only a question of the order of proof, and it may as well come in one time as another. ’ ’ Defendant afterward moved to strike out all the testimony of this witness relating to the conversations that she had with Bills, on the ground that no authority from McBean had been shown authorizing Bills to act as his agent in any manner, and that her testimony, so far as it relates to Bills, is wholly irrelevant and immaterial, which motion was denied, and defendant excepted. The motion to strike out was premature, and was properly denied. The court did not abuse its discretion in permitting the evidence to be given at that stage of the case. It involved only the power of the court to control the order of proof; and, even conceding that the testimony of this witness did not then tend' to show that Bills was authorized to represent McBean, if it did not show that it was not so authorized, it was proper to retain it until all of plaintiff’s evidence was in, as other evidence might, and as we think did, show that he was so authorized.
Upon cross-examination the plaintiff was asked: “Whose $1,000 was that that was paid for the first payment?” An objection on the part of the plaintiff was sustained, to which the defendant excepted. This point was settled upon the first appeal: See 91 Cal. 73, 14 L. R. A. 65, 27 Pac. 518. Besides, if the court erred in sustaining this objection, it was rendered
Plaintiff was asked, upon cross-examination, the following question: “Did Raynor agree to pay you some portion of the $3,000, or the whole of it?” Plaintiff’s objection was properly sustained. The defendant had entered into a written obligation to pay the money demanded, and could not be relieved from that obligation by Raynor’s agreement to pay it, unless, in consideration of that agreement, the plaintiff released McBean; and this was not included in the question nor proposed to be shown.
The testimony of Mr. Mintzer that the property was sold to Bills under the contract made with plaintiff was both material and relevant. The conversation between Bills and Mintzer, testified to by the latter, in which Bills said he was there representing McBean, and was ready to consummate the trade, was competent and material for the purpose of showing that the purchase was made under the contract assigned to McBean by the plaintiff. The absence of McBean did not affect the testimony upon that point, at least. As to its bearing on the question of Bills’ agency for McBean, it corroborated the statement of McBean, made to the witness after the sale, “that he had become the purchaser of the property; that he meant to put in larger pipes.” So, too, the possession and production by Bills, at the time of the transaction, of the assignment of the contract by plaintiff to McBean, was a circumstance which tended to prove that he was the agent of McBean, and corroborated his statement that he represented McBean.
The subsequent conversation between Mintzer and McBean in regard to the sale of lots made by Mintzer after the contract with plaintiff, and before the conveyance to Bills, was also relevant and material. As urged by counsel, there was no issue in the case as to who was entitled to these lots, or the proceeds of them; but the fact that McBean raised a question in regard to them, and claimed the unpaid portion of the money for which they were sold, was very cogent and convincing evidence of three important facts in controversy, namely: (1) That the purchase, by whomsoever made, was made under this contract, as otherwise no possible claim could be made for lots sold after the date of the contract, and before the sale on July 13th; (2) that McBean was the real pur
P. A. Raynor, called on behalf of the defendant, was asked the following question: “State at whose instance she obtained that contract.” This question was asked for the purpose of showing that the contract here sued upon was obtained by Mrs. Ferguson from the Colton Land and Water Company at the instance and request of Raynor. This evidence was clearly immaterial. The plaintiff made the contract with the Colton Land and Water Company personally, and it was assigned to the defendant, who agreed in writing that, under the circumstances and conditions therein expressed, he would pay to her the sum of $3,000. The obligation of the defendant, it is clear, could not be affected by the fact that Raynor, or anyone else, had instigated the plaintiff to .procure the contract.
We concur: Belcher, C.; Searls, C.
For the reasons given in the foregoing opinion, said judgment and order are affirmed.