Biven v. Bostwick

California Supreme Court

Biven v. Bostwick

11 P. 790, 70 Cal. 639, 1886 Cal. LEXIS 865

CourtCalifornia Supreme Court

DecidedSeptember 16, 1886

DocketNo. 11205

StatusPublished

Cited by6 cases

This text of 11 P. 790 (Biven v. Bostwick) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Biven v. Bostwick, 11 P. 790, 70 Cal. 639, 1886 Cal. LEXIS 865 (Cal. 1886).

Pincite

Opinion

Thornton, J.

This action is brought on a promise by the defendant to pay over a sum of money in his hands to the plaintiff.

The questions presented relate mainly to the sufficiency of the evidence to sustain the verdict of the jury on certain special issues submitted to it. The evidence, in our judgment, was sufficient for that purpose.

The defendant requested the court to instruct the jury as follows:—

This action is brought to enforce a special promise alleged to have been made by the defendant to Jesse A. Mitchell to pay a certain indebtedness from said Mitchell to the plaintiff in this action; and before the plaintiff can recover, you must be satisfied from the evidence that the defendant, at or about the time charged in the complaint, “promised the said Mitchell to pay to the plaintiff the amount 'or residue left in the hands of Bostwick after paying to himself the amount secured by the mortgage of Mitchell to Bostwick.”

The instruction was refused, and defendant excepted.

The plaintiff was entitled to recover if the promise was made at any time before the commencement of the action. It need not have been made at or about the time charged in the complaint. The court did not, therefore, err in refusing the instruction as asked. There is no error in the record.

Judgment and order affirmed.

McKee, J., and Sharpstein, J., concurred.

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Thornton, J.

This action is brought on a promise by the defendant to pay over a sum of money in his hands to the plaintiff.

The questions presented relate mainly to the sufficiency of the evidence to sustain the verdict of the jury on certain special issues submitted to it. The evidence, in our judgment, was sufficient for that purpose.

The defendant requested the court to instruct the jury as follows:—

This action is brought to enforce a special promise alleged to have been made by the defendant to Jesse A. Mitchell to pay a certain indebtedness from said Mitchell to the plaintiff in this action; and before the plaintiff can recover, you must be satisfied from the evidence that the defendant, at or about the time charged in the complaint, “promised the said Mitchell to pay to the plaintiff the amount 'or residue left in the hands of Bostwick after paying to himself the amount secured by the mortgage of Mitchell to Bostwick.”

The instruction was refused, and defendant excepted.

The plaintiff was entitled to recover if the promise was made at any time before the commencement of the action. It need not have been made at or about the time charged in the complaint. The court did not, therefore, err in refusing the instruction as asked. There is no error in the record.

Judgment and order affirmed.

McKee, J., and Sharpstein, J., concurred.

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Bluebook (online)

11 P. 790, 70 Cal. 639, 1886 Cal. LEXIS 865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biven-v-bostwick-cal-1886.

Opinion

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