Dysert v. Weaver

California Court of Appeal

Dysert v. Weaver

189 P. 492, 46 Cal. App. 576, 1920 Cal. App. LEXIS 750

CourtCalifornia Court of Appeal

DecidedMarch 16, 1920

DocketCiv. No. 3176.

StatusPublished

Cited by6 cases

This text of 189 P. 492 (Dysert v. Weaver) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dysert v. Weaver, 189 P. 492, 46 Cal. App. 576, 1920 Cal. App. LEXIS 750 (Cal. Ct. App. 1920).

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Opinion

FINLAYSON, P. J.

This is an action upon a promissory note executed by defendants. Plaintiffs are the payees named in the note.

[1] Upon the trial, when plaintiffs sought to introduce their evidence, defendants objected upon the ground that the complaint does not state a cause of action. It is claimed that there is no sufficient allegation of nonpayment. The complaint alleges that “ninety-one dollars and eighty-seven cents ($91.87), the interest on said promissory note to October 7, 1916, has been paid, and that no other or further sum has been paid thereon.” Appellants contend that the word “thereon” modifies the word “interest,” and that this allegation amounts to no more than an averment that no more has been paid on the interest than ninety-one dollars and eighty-seven cents. We cannot assent to this construction of the plain and unambiguous language of the complaint. We think it quite clear that the word “thereon” refers to the words “promissory note,” and that the allegation is equivalent to an averment that all the interest that accrued up to October 7, 1916, has been paid, and that no other or further sum has been paid on the note.

[2] There is no merit in the contention that the complaint should have alleged that plaintiffs are the “owners and holders” of the note. In an action by the payee against the maker it is sufficient to allege the execution and de *578 livery of the note to plaintiff, without alleging that he is the owner and holder. It will be presumed that the payee of a note, in possession thereof, is the owner. (Bank of Shasta v. Boyd, 99 Cal. 604, [34 Pac. 337] ; Locke v. Klunker, 123 Cal. 231, 239, [55 Pac. 993] ; Yellow Jacket etc. Co. v. Holbrook, 24 Cal. App. 687, [142 Pac. 128] ; 8 C. J., p. 886, title “Bills and Notes,” par. 1159.)

The appeal is wholly without merit. It is inconceivable that it could have been taken with any reasonable hope of success. Because the appeal is manifestly frivolous, appellants, we think, should pay respondents such damages as may be just. We consider one hundred dollars a proper sum to be charged.

It is ordered that the judgment be affirmed, and that respondents recover of appellants the sum of one hundred dollars as damages.

Sloane, J., and Thomas, J., concurred.

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FINLAYSON, P. J.

This is an action upon a promissory note executed by defendants. Plaintiffs are the payees named in the note.

[1] Upon the trial, when plaintiffs sought to introduce their evidence, defendants objected upon the ground that the complaint does not state a cause of action. It is claimed that there is no sufficient allegation of nonpayment. The complaint alleges that “ninety-one dollars and eighty-seven cents ($91.87), the interest on said promissory note to October 7, 1916, has been paid, and that no other or further sum has been paid thereon.” Appellants contend that the word “thereon” modifies the word “interest,” and that this allegation amounts to no more than an averment that no more has been paid on the interest than ninety-one dollars and eighty-seven cents. We cannot assent to this construction of the plain and unambiguous language of the complaint. We think it quite clear that the word “thereon” refers to the words “promissory note,” and that the allegation is equivalent to an averment that all the interest that accrued up to October 7, 1916, has been paid, and that no other or further sum has been paid on the note.

[2] There is no merit in the contention that the complaint should have alleged that plaintiffs are the “owners and holders” of the note. In an action by the payee against the maker it is sufficient to allege the execution and de *578 livery of the note to plaintiff, without alleging that he is the owner and holder. It will be presumed that the payee of a note, in possession thereof, is the owner. (Bank of Shasta v. Boyd, 99 Cal. 604, [34 Pac. 337] ; Locke v. Klunker, 123 Cal. 231, 239, [55 Pac. 993] ; Yellow Jacket etc. Co. v. Holbrook, 24 Cal. App. 687, [142 Pac. 128] ; 8 C. J., p. 886, title “Bills and Notes,” par. 1159.)

The appeal is wholly without merit. It is inconceivable that it could have been taken with any reasonable hope of success. Because the appeal is manifestly frivolous, appellants, we think, should pay respondents such damages as may be just. We consider one hundred dollars a proper sum to be charged.

It is ordered that the judgment be affirmed, and that respondents recover of appellants the sum of one hundred dollars as damages.

Sloane, J., and Thomas, J., concurred.

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189 P. 492, 46 Cal. App. 576, 1920 Cal. App. LEXIS 750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dysert-v-weaver-calctapp-1920.

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