Whitaker v. Mitchell

California Supreme Court

Whitaker v. Mitchell

58 Cal. 362, 1881 Cal. LEXIS 237

CourtCalifornia Supreme Court

DecidedJuly 1, 1881

DocketNo. 7,463

StatusPublished

Cited by1 cases

This text of 58 Cal. 362 (Whitaker v. Mitchell) 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

Whitaker v. Mitchell, 58 Cal. 362, 1881 Cal. LEXIS 237 (Cal. 1881).

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Opinion

Myrick, J.:

1. If the contract testified to by the witnesses Mitchell, Faulkner, and Stiles was made as stated by them, neither the plaintiffs by themselves, nor with the consent of Mitchell, could have diverted the eight-hundred-dollar check from being applied to the payment of the note in suit, without the consent of the defendants Faulkner and Langford. There was some evidence, slight though it may have been, tending to prove that such contract was not made. The Court must have believed the latter testimony to have been true; therefore, we can not say the findings are not supported.

2. The Court did not err in refusing to strike out the testimony of Whitaker as to Langford putting in the note in controversy on the settlement with the creditors. The testimony was addressed merely to the fact as to whether a list of claims was made; not as to the contents of the paper.

3. The allegation in the answer that the plaintiffs informed the defendants Faulkner and Langford that the note had been paid by Mitchell, presented no issue upon which a finding was necessary. The fact that he so informed them might be competent testimony upon an issue of payment, but was not an ultimate fact to be found.

Judgment and order affirmed.

Sharpstein, J., and Morrison, C. J., concurred in the judgment.

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Myrick, J.:

1. If the contract testified to by the witnesses Mitchell, Faulkner, and Stiles was made as stated by them, neither the plaintiffs by themselves, nor with the consent of Mitchell, could have diverted the eight-hundred-dollar check from being applied to the payment of the note in suit, without the consent of the defendants Faulkner and Langford. There was some evidence, slight though it may have been, tending to prove that such contract was not made. The Court must have believed the latter testimony to have been true; therefore, we can not say the findings are not supported.

2. The Court did not err in refusing to strike out the testimony of Whitaker as to Langford putting in the note in controversy on the settlement with the creditors. The testimony was addressed merely to the fact as to whether a list of claims was made; not as to the contents of the paper.

3. The allegation in the answer that the plaintiffs informed the defendants Faulkner and Langford that the note had been paid by Mitchell, presented no issue upon which a finding was necessary. The fact that he so informed them might be competent testimony upon an issue of payment, but was not an ultimate fact to be found.

Judgment and order affirmed.

Sharpstein, J., and Morrison, C. J., concurred in the judgment.

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Bluebook (online)

58 Cal. 362, 1881 Cal. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitaker-v-mitchell-cal-1881.

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