Price v. Dunlap

5 Cal. 483

• Court: California Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Murray, C. J., delivered the opinion of the Court.

Heydenfeldt, J., concurred.

Many errors are assigned in the record,—none of which are tenable.

In Welton v. Adams & Co., 4 Cal., 37, we held, that in case of the loss or destruction of negotiable paper, the plaintiff could not maintain his action, without first indemnifying the defendant.

This rule was established for the protection and safety of the commercial community, and has not been extended by any subsequent decisions. The plaintiff in this case has brought himself within the rule: the evidence shows that he did tender a bond of indemnity, and further offered,'if such bond was not satisfactory, to furnish such a one as the defendant should suggest or approve. The declaration contains an averment of these facts, as well as of the plaintiff's readiness to submit a bond under the direction of the Court.

Under these circumstances he had done all that he could, and the defendant’s refusal to pay the amount in dispute, may be regarded as founded in captiousness, rather than an objection to the bond,—the sufficiency of which he does not appear to have questioned until the trial.

The objection that the plaintiff is not the party in interest, is without foundation; the note was made payable to him, and he is prima facie the owner;—his right to maintain this action cannot be questioned, except the defendant pleads payment or offset against Cicero Price, whom he alleges is the true owner of the note.

The objection to the testimony of Hunter and McKee is frivolous; the one was called to prove the records of the Court, of which he was Clerk; and the computation of interest, attached to the deposition of the latter, was never read in evidence. That portion of Reed’s testimony with regard to the entries made by himself, was undoubtedly admissible. As to the other portions, while they might be admitted upon good authority as part of a chain of facts, the main circumstances of which had already been proved, still, we are not called upon to decide how far such evidence was admissible, as the testimony does not appear to have been material.

The other assignments of error are unimportant, and cannot be maintained.

Judgment affirmed, with costs.