Cook v. Hathaway

Norton,-J-. On the trial of this action, I lield that defendants, having accepted the order drawn by Mrs. Beard in favor of the plaintiff, for the grain which by the order she claimed to have in their hands, and having rendered an account admitting the sales to have been made on the plaintiff’s account, and a balance to be due to him, could not be allowed to resist the payment on the ground that they had no grain of 8 Mrs. Beard’s in their hands at the time of accepting the order, and accordingly all proofs offered by the defendants tending to prove this fact were ruled out as immaterial. The propriety of this ruling seems to be sanctioned by the cases, of Adams v. Gorham, 6 Cal. 68, and Garwood v. Simpson, 7 Cal. July Term. The paper given by Cook to the defendants is void as a contract, for want of consideration. It contains no promise on the part of the defendants and is not signed by them. If they had signed it and thereby agreed to pay the ten per cent, interest, I think it would have been a sufficient consideration, because no demand having been made on them for the proceeds of the sales, they were not as yet liable to pay interest. I should in that case have given a liberal interpretation to its inartificial language in order to give it effect, because it appears to contain the real agreement between the parties as it probably existed at the date of the order and acceptance. There was no error in refusing to charge as requested in regard to proof of the co-partnership, of the defendants. The mere fact of their being partners or not was immaterial. If it had been necessary to prove that these two defendants, Hathaway and Raynor, were the acceptors of the order, it would have been necessary to prove that they were partners doing business under the name of “Hathaway <f* Co.,” because that was.the only signature to the acceptance. But the order with the acceptance endorsed and the account of sales had been given in evidence without objection, and without requiring proof that they were executed as alleged in the complaint by the defendants under the firm name of Hathaway Co. I do not remember to have added to this refusal, the charge that the execution of the instrument was admitted by the answer, and such a charge is not very naturally connected with the request. But it contains no error. A copy of the instrument having been set out, and the defendants charged with having executed it by the name of Hathaway <f- Co., it was incumbent on them to deny such execution on oath, or it was admitted. By looking at the complaint, I see that, in truth, the order as accepted is not fully set out; that is, the acceptance is not copied, but instead of this, there is an averment of the acceptance. This circumstance appears to have been overlooked, as no objection is pointed to it, and it is correctly copied in the statement for a new trial, as being the one set forth 9 in the complaint. If this objection had been taken when the acceptance was offered in evidence, it might have been held to be well taken. It is suggested in the defendants’ brief, that the bill of sale was not proved, and is not admitted by the answer because it is not an instrument on which the action is brought. This having been suffered to be given in evidence, without proof and without objection, it is not a ground for a new trial, if the objection would' have been a good one if raised at the time. New trial denied.