Kettner v. Shippey

California Court of Appeal

Kettner v. Shippey

96 P. 912, 8 Cal. App. 342, 1908 Cal. App. LEXIS 189

CourtCalifornia Court of Appeal

DecidedMay 29, 1908

DocketCiv. No. 491.

StatusPublished

This text of 96 P. 912 (Kettner v. Shippey) 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

Kettner v. Shippey, 96 P. 912, 8 Cal. App. 342, 1908 Cal. App. LEXIS 189 (Cal. Ct. App. 1908).

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Opinion

ALLEN, P. J.

The complaint declares upon a promissory note, negotiable in form, executed by defendants to one Brown for $1,300 and interest. Alleges also its maturity, nonpayment and assignment and transfer, before the com *343 mencement of the action, for a valuable consideration, to plaintiff, who is the owner and holder thereof. The answers deny the execution of the note, or that for a valuable consideration it was assigned or transferred to plaintiff by Brown, and allege that there was no consideration for its original execution.

Upon the trial the execution was admitted, and the court found that after maturity Brown assigned and transferred the note to plaintiff, who is now the lawful owner and holder thereof. The court further finds against defendants upon the issue as to consideration in the original execution.

Appellants contend for a reversal of the judgment because no finding is made in relation to the valuable character of the consideration for the assignment and transfer to plaintiff. Under the rule, the complaint must be construed as alleging transfer after maturity, from which it follows that in the action defendants were entitled to avail themselves of any defense which they could have made had the suit been brought by the original payee. The purpose of the statute which provides that the action must be prosecuted by the real party in interest is to save a defendant against whom a judgment may be obtained from further vexation or litigation instituted by other parties claiming the same demand; “but where the plaintiff shows such a title as that a judgment upon it satisfied by defendant will protect him from further annoyance or loss, and where, as against the party suing, defendant can urge any defenses he could make against the real owner, then there is an end of the defendant’s concern, and with it of his right to object.’’ (Giselman v. Starr, 106 Cal. 658, [40 Pac. 8].) "When so protected, the character or extent of consideration paid by the assignee is wholly immaterial, and no prejudice results from any omission to find in relation thereto.

It is insisted further by appellants that the evidence is insufficient to support the finding that the note was executed upon a valid consideration. There is evidence in the record which, if true, establishes that Brown held a note for $1,500, secured by chattel mortgage upon property owned by defendant Noble, the payment of which note Noble had assumed; that, under an agreement with Noble and certain of defendants who had become associated with him in the *344 ownership of said property, Brown agreed to accept the note sued on in satisfaction of the note held by him and so secured. Pursuant to this agreement the note set out in the complaint was executed. Brown thereafter released the mortgage and destroyed the note which it secured. The court accepted these facts as established. They are sufficient to warrant the finding. That the evidence was conflicting is apparent, but it is not our duty to disturb a finding which rests upon competent evidence.

There is no prejudicial error in the record, and the judgment and order appealed from are affirmed.

Shaw, J., and Taggart, J., concurred.

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ALLEN, P. J.

The complaint declares upon a promissory note, negotiable in form, executed by defendants to one Brown for $1,300 and interest. Alleges also its maturity, nonpayment and assignment and transfer, before the com *343 mencement of the action, for a valuable consideration, to plaintiff, who is the owner and holder thereof. The answers deny the execution of the note, or that for a valuable consideration it was assigned or transferred to plaintiff by Brown, and allege that there was no consideration for its original execution.

Upon the trial the execution was admitted, and the court found that after maturity Brown assigned and transferred the note to plaintiff, who is now the lawful owner and holder thereof. The court further finds against defendants upon the issue as to consideration in the original execution.

Appellants contend for a reversal of the judgment because no finding is made in relation to the valuable character of the consideration for the assignment and transfer to plaintiff. Under the rule, the complaint must be construed as alleging transfer after maturity, from which it follows that in the action defendants were entitled to avail themselves of any defense which they could have made had the suit been brought by the original payee. The purpose of the statute which provides that the action must be prosecuted by the real party in interest is to save a defendant against whom a judgment may be obtained from further vexation or litigation instituted by other parties claiming the same demand; “but where the plaintiff shows such a title as that a judgment upon it satisfied by defendant will protect him from further annoyance or loss, and where, as against the party suing, defendant can urge any defenses he could make against the real owner, then there is an end of the defendant’s concern, and with it of his right to object.’’ (Giselman v. Starr, 106 Cal. 658, [40 Pac. 8].) "When so protected, the character or extent of consideration paid by the assignee is wholly immaterial, and no prejudice results from any omission to find in relation thereto.

It is insisted further by appellants that the evidence is insufficient to support the finding that the note was executed upon a valid consideration. There is evidence in the record which, if true, establishes that Brown held a note for $1,500, secured by chattel mortgage upon property owned by defendant Noble, the payment of which note Noble had assumed; that, under an agreement with Noble and certain of defendants who had become associated with him in the *344 ownership of said property, Brown agreed to accept the note sued on in satisfaction of the note held by him and so secured. Pursuant to this agreement the note set out in the complaint was executed. Brown thereafter released the mortgage and destroyed the note which it secured. The court accepted these facts as established. They are sufficient to warrant the finding. That the evidence was conflicting is apparent, but it is not our duty to disturb a finding which rests upon competent evidence.

There is no prejudicial error in the record, and the judgment and order appealed from are affirmed.

Shaw, J., and Taggart, J., concurred.

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96 P. 912, 8 Cal. App. 342, 1908 Cal. App. LEXIS 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kettner-v-shippey-calctapp-1908.

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