Summary
In Ward v. Clay, 82 Cal. 502, it was held that a copy of a note annexed to the complaint, and referred to in the body of it as an exhibit, forms a part of the complaint, and may properly be referred to by the court for the purpose of ascertaining the form and contents of the note.
Summary of this case from Savings Bank of San Diego County v. BurnsOpinion
Department Two
82 Cal. 502 at 511.
Original Opinion of January 11, 1890, Reported at 82 Cal. 502.
JUDGES: Beatty, C. J.
OPINION
BEATTY, Judge
A petition for a rehearing having been filed, the following opinion was rendered thereon on the 10th of February, 1890:
The appellant bases her petition for a rehearing altogether upon the contention that the ninth finding of the superior court, "that there is now due and owing from defendant Sadie I. Clay to plaintiff, on the promissory note sued on in this case, a balance of $ 790.75," is merely a conclusion of law, and not a finding of fact covering the issue of non-payment.
I think the contention is well founded, and that we ought not to approve the ninth finding as a sufficient answer to the issue of non-payment. But there are specific findings covering this issue.
It is found that the defendant, as collateral security for the note in suit, assigned a note payable to her, dated December 7, 1883, for two thousand dollars, bearing interest at six per cent. It is further found that this note, so held as collateral security, was sold by the plaintiff January 25, 1886, "for the amount of the principal and interest then due" thereon, and the proceeds credited on the note in suit.
It is further found that no part of the note in suit has been paid, "except the amount of the principal and interest due on the two-thousand-dollar collateral note dated January 25, 1886."
The word "dated" in the last part of this finding is an evident clerical mistake, and should be omitted. With or without it the meaning of the finding is perfectly clear, viz., that no part of the note in suit has been paid except two thousand dollars, the principal of said collateral note, and the interest due thereon January 25, 1886.
It is true this leaves the amount paid to be computed, but that is certain which can be made certain, and allowing in favor of the defendant that all the interest that had ever accrued on the two-thousand-dollar note was due and unpaid when it was sold, and deducting this maximum sum from the amount of the note in suit at the date of judgment, there remains the full sum found to be due, and for which judgment was rendered.
Rehearing denied.