Weingetz v. Cheverton

—Defendant Charles J. Himes appeals from the judgment rendered against him and in favor of defendant Fred Linderman in an action in inter-pleader brought by Gregory A. Weingetz, as escrow holder of certain funds, against these defendants and certain creditors of Linderman and others, to determine the rights of the several defendants in and to those funds. Himes also appeals from an order denying his motion for a new trial.

It appears that Linderman owned a lumber mill, which burned on June 1, 1945. He experienced some difficulty in financing the rebuilding of the mill. Debts for labor and materials piled up. To meet these, he sought to borrow $15,000 from Bay Pacific Corporation. The negotiations resulted in the sale of the mill by Linderman to Bay Pacific Corporation, the purchaser to pay Linderman $10,000 and assume and pay the mill creditors. Bay Pacific received and recorded a deed to the property but failed to perform its part of the agreement. Linderman served a notice of rescission and then entered into.a contract with Himes for the sale of the mill to the latter.

By that contract Linderman agreed to sell his interest in the property to Himes and Himes agreed to pay Linderman $10,000 and assume and pay certain debts which had been incurred in relation to the reconstruction and maintenance of the mill. The dispute between these parties, at the trial and upon this appeal, is in relation to the nature of the debts thus assumed by Himes. Linderman contends they comprehended all such debts, including labor claims, material-men’s claims, taxes, insurance premiums, and unpaid balances on machinery, except labor claims and withholding taxes incurred prior to the fire of June 1, 1945. Himes contends

The escrow (Ex. 2), signed by Himes and Linderman, and delivered to, signed and accepted by Weingetz as escrow holder, read as follows:

“Herewith to Gregory A. Weingetz: 1. Executed deed 2. Two executed agreements 3. Signed note, $9,000.00, and 4. One check for $1,000.00 Linderman, by signature, permits delivery through Weingetz to Himes of the above deed and one original .agreement unless by 10:59 A. M., Wednesday, January 16, 1946, Himes has called off this deal. If not, Weingetz, escrow holder, will deliver deed and one copy of original agreement to Himes, and $1,000.00 check and $9,000.00 note to Linderman.

Ered Linderman Charles J. Himes

I accept as escrow holder

Gregory Weingetz”

The trial court found that this escrow contract, executed by Linderman and Himes, was delivered by them to Weingetz as escrow holder pn January 10, 1946; that the “Executed deed” mentioned in the escrow contract was a quitclaim deed of the mill property, by Linderman to Himes, notarized January .10, 1946; that the “Two executed agreements” mentioned in the escrow contract were duplicate originals of the agreement dated January 10, 1946 (Ex. A), each signed by Linderman and by Himes; that the expression “Signed note, $9,000.00,” as used in the escrow contract, referred to a note which was later changed by agreement of the parties to a note dated January 16, 1946, signed by Himes as maker, whereby Himes promised to pay to Linderman, or order, $9,000, with interest at 5 per cent per annum, in amounts of not less than $500 per month, payable on or before the 10th day of each month; that by action and agreement of Himes and Linderman the closing of the escrow was postponed to January 21,1946, during which time various counter-proposals and changes in the agreements were discussed,

The court’s findings on the controversial issue are supported, principally, by the testimony of the witness Carroll Single, attorney for Linderman. He conducted the negotiations for Linderman, attended all the conferences, and prepared all of the documents in relation to this transaction. As to the agreement dated January 10, 1946 (Ex. A), after a fruitless demand for production of the original, respondent tendered proof by means of a carbon copy and oral testimony.

Single testified that at his office, on January 9, 1946, Weingetz, Himes, Frederick Henderson of Bay Pacific Corporation, Harry Henderson, attorney for Frederick Henderson, defendant Moore, Linderman, Porter, an associate of Linderman, and Single conferred and discussed an agreement which was later put to writing; that on the following day, January 10, there was another conference, attended by Weingetz, Himes, Moore, Single, Linderman and Freidenrich, then counsel for Himes; that at that time Single prepared the documents, which were submitted to Weingetz as escrow holder. Those documents, according to the witness, included

As to Exhibit 4, which at the time of the trial bore the signatures of Himes as well as of Linderman, Single testified that he prepared the document; that in response to demand by Himes for modification of the original agreement for postponement of payment of principal and interest on the promissory note until 30 days after commencement of operation of the mill, and to confine Himes’ undertaking in respect to labor claims to those which occurred after the fire at the mill, a document, signed by Linderman and lodged with Weingetz, through mistake referred to the date of the fire as of July 2 instead of June 1, 1945, which prompted a redrafting of documents; that Himes did not sign Exhibit 4 at any time in Linderman’s presence or in Single’s presence; Single did not know when Himes put his signature on it, but did know that Himes did not sign it on January 16 or on January 21, and that in the witness’ opinion it was never signed by Himes until some date after January 21, 1946, the day when the escrow was consummated and closed.

Appellant claims that this testimony is not evidence that Exhibit A was signed by Himes or that Exhibit 4 was not signed by Himes before the closing of the escrow, because

Appellant is in error in this regard. The law does not require that the result of a witness’ observation be positive or absolute knowledge. Such a degree of certainty is not demanded of a witness. In an early case, a witness, shown a deed of conveyance, testified: “ ‘I signed my name to this paper as subscribing witness. I don’t know who signed the name of Thomas or McGarrity; think Irwin wrote them; don’t know whether Irwin signed it in my presence, or not; don’t know that Thomas or McGarrity made their marks in my presence; but to the best of my recollection they did.’ ” (McGarrity v. Byington, 12 Cal. 426 , 427.) The deed was admitted in evidence over the objection of the opposite party. The Supreme Court held it was properly admitted, saying: “It is true the witness says it was signed in his presence, ‘to the best of his recollection’; but this is enough.” (P. 430.) The applicable principle was well expressed in People v. Rolfe, 61 Cal. 540 , at page 543, as follows: “The objection that the witnesses did not positively and beyond a doubt identify the defendant, can not be sustained. They expressed the belief that he was the person they had seen, and although their evidence was given with great caution, it was sufficiently certain respecting the identity of the defendant to go to the jury, and it was for the jury to say what weight it was entitled to.” (Emphasis by the court.) In People v. Soap, 127 Cal. 408 [ 59 P. 771 ], it appeared that a witness qualified a portion of his testimony by the expression, “I presume.” A motion to strike was interposed. The trial judge asked the witness: “What do you mean by saying you presume? That you are merely guessing at it, or that it was your best information?” The witness replied, “That was my best information.” The judge denied the motion. Of this, the Supreme Court said: “There was no error in this; while a witness can testify only to facts which are within his knowledge, he is not required to testify with that certainty which excludes all doubt from his mind. The word ‘presume’ as used by the witness was nothing more than a statement of his best recollection. ” (127 Cal. at p. 410.) An objection that evidence is not positive goes to its weight rather than to its admissibility. (People v. Harlan, 133 Cal. 16 , 22 [ 65 P. 9 ].) Concerning the testimony of a witness that “ ‘. . . I thought then I saw somebody lying on the sidewalk

Even if some of this testimony were vulnerable for lack of positiveness or as representing opinion instead of knowledge, it is evidence in the ease, for it went in without objection, and no motion was made to strike any of it from the record. Such evidence is legally sufficient to establish a fact, and is likewise sufficient to support a finding based thereon. (Seaford v. Smith, 86 Cal.App.2d 339 , 344 [ 194 P.2d 792 ]; Fallon v. Fallon, 86 Cal.App.2d 872 , 873 [ 195 P.2d 878 ]; People v. One Ford V8 Coach, 21 Cal.App.2d 445 , 448 [ 69 P.2d 473 ]. See, also, cases cited in 2 Cal.Jur. 804, § 473.)

Various circumstances support the testimony of Single and the finding based upon it. The court found, upon ample evidence, that the escrow contract was signed by Himes, Linderman and Weingetz and lodged with Weingetz on January 10, 1946. That contract recited delivery to Weingetz of an “Executed deed” and “Two executed agreements.” The deed, which is in evidence, was a quitclaim deed from Linderman to Himes, • dated and notarized on January 10, 1946. And, as of January 10, 1946, the only agreements which had been written and which could possibly answer the description “Two executed agreements” were the duplicate originals of the agreement dated January 10, Exhibit A. In addition, it appears without conflict in the evidence that

Appellant directs attention to certain portions of the testimony of respondent Linderman, referring to them as statements by a party indicative of nonexecution by Himes of Exhibit A and of execution by him of Exhibit 4 prior to the closing of the escrow. Unless those statements were tantamount to judicial admissions of a party, they amounted at most to conflicts in the evidence which the trial judge resolved against the appellant by the findings which he made.

As to execution of the agreement dated January 10, 1946 (Ex. A), Linderman’s testimony, by question and answer, was as follows: “Q. Is this a typewriter carbon copy of that agreement [Ex. A] ? A. Yes. Q. Was it signed on the 10th of January? A. Yes. ... Q. By whom was it signed? A. By Mr. Himes and myself. The Court : Q. Did you see Mr. Himes sign it? A. Yes. I think- Q. What? A. Yes, he signed it in our presence in Mr. Carroll Single’s office. Mr. Single: Q. Exactly as stated on this escrow? A. Yes.” Upon cross-examination, the following questions were asked of this witness, and answers given by him, in relation to Exhibit A: “Q. Now, isn’t it a fact, Mr. Linderman, that

As to the execution of the disputed document dated January 16, 1946 (Ex. 4), Linderman testified, by question and answer, upon direct examination, as follows: “Q. On the 21st of January, when Mr. Himes signed the agreement [Ex. 1], did you see him sign two on the same date, or only one ? . . . A. I think he signed the two. I saw him sign two. . . . Q. What was the actual date of the fire that burned down yóur mill? A. On June 1, 1945. Q. Was it July 2, 1945.? A. No. Q. Had a mistake been made in that document [Ex. 4] signed by you? A. It had. . . . Q. And did you correct that date in the final agreement [Ex. 1] that was signed? A. Yes. . . . Q. Did Himes sign this agreement, Plaintiff’s Exhibit No. 4 ... in your presence at any time? A. Yes, I think he signed that.” Upon cross-examination, the witness gave the following answers to the questions stated: “Q. Isn’t it a fact that you, and Mr. Himes, and Mr. Weingetz, and Mr. Single, made and executed a new agreement on the 16th of January, 1946? A. Yes. Q. And isn’t it a fact, Mr. Linderman, that this is the agreement that was finally presented by you to Mr. Himes for his approval, Plaintiff’s Exhibit No. 4 (handing document to the witness) ? A. You say that was the— that was signed on that date, yes. Q. That was signed on that date, but isn’t that the agreement that was presented to Mr. Himes for his signature on the 16th following his

It was the function of the trial judge, who observed and heard the witnesses, to determine, in reference to Linderman ’s testimony, whether it was simply the case of a witness who observed with lack of precision and had an indistinct recollection, or the ease of a party making a judicial admission. The findings which the trial judge made demonstrate that he viewed it as merely a case of inconsistencies and uncertainties in the testimony of a witness, reflecting faulty observation or memory or both, coupled perhaps with confusion and perplexity while on the witness stand; statements of a nature, and uttered under circumstances, which the trial judge impliedly found did not amount to judicial admissions. We do not consider it the function of an appellate court to undertake to overrule that finding, even were we disposed to differ with the trial judge. The typewritten record does not disclose to us all the varied factors which he had before him, and considered and weighed, when he made that finding.

The law is clear on this point. Testimony given on the witness stand does not partake of the nature of a formal judicial admission, certainly should not be so treated in all cases, as a matter of law. The reason is well expressed by Wigmore in these words: “Testimony in court is an elusive matter of mental operations. It is the culmination of much talk and reflection and memory-stirring between all concerned. It is full of surprises at the trial. The truth of the case depends upon a comparison of what all the witnesses say and all the circumstances indicate. A rule which binds a party to a particular statement uttered on the stand becomes an artificial rule. It is out of place in dealing with testimony. Let the judge test each case by itself.” (IX Wigmore on Evidence, 3d ed., p. 601, § 2594a.) In Frost v. Los Angeles Railway Co., 165 Cal. 365 [ 132 P. 442 ], our Supreme Court recognized this basic difference between statements occurring in the testimony of a party as a witness and formal judicial admissions made by Mm or on his behalf

Appellant urges also that even if the agreement dated January 10, 1946 (Ex. A), was signed by Himes as well as Linderman, it was modified by the later agreement of January 16, 1946, identified as Exhibit 4. The answer to that is our conclusion that the trial court’s finding that Exhibit 4 was not signed by Himes prior to the closing of the escrow is supported by the evidence and cannot be disturbed.

Finally, appellant presents a jurisdictional question as a basis for reversing the judgment. He asserts that the sole issue presented by the complaint in interpleader herein was the question, “Who was entitled to the personal property that was the subject of the escrow and deposited in court?” That property so deposited consisted of the $9,000 promissory note and the sum of $9,241.14, which Himes had paid on the note to plaintiff Weingetz as escrow holder. The court did go further than that and did determine the rights and liabilities of the parties arising out of the sale of the mill from Linderman to Himes, and the respective obligations of Linderman and Himes toward the mill creditors.

It is true that the plaintiff in an action of interpleader brings such an action when he holds property to which various

The judgment appealed from is affirmed. The appeal from the order denying a new trial, a nonappealable order, is dismissed.

Peters, P. J., and Bray, J., concurred.

Appellant’s petition for a hearing by the Supreme Court ivas denied March 29, 1951.