Charleton v. Reed — 1 Cal. Unrep. 695

Majority

p. 695

SAMUEL H. CHARLETON, Respondent, v. E. P. REED, Appellant.

No. 2823;

November 8, 1871.

Headnote

Evidence — Admissions in Answer. — A Plaintiff Need not Prove at the trial matter admitted in the answer.

Appeal — Conflicting Evidence. — The Finding of the Trial Court on a point as to which the evidence was directly and substantially conflicting should be allowed to stand.

p. 696

Costs. — In Modifying the Trial Court’s Judgment, erroneous merely through an incorrect and excessive computation of interest, the respondent is made to pay the costs of appeal.

APPEAL from Third Judicial District, Santa Clara County.

Badley & Rankin and Moore, Lania & Silent for respondent; S. 0. Houghton for appellant.

— The judgment in this ease is not in con-, formity with the verdict, which evidently is the result of erroneous computation of interest on two thousand dollars from the thirteenth day of November, 1866, to the twenty-ninth day of September, 1870, the day of the rendition of the verdict and the entry of judgment thereon. The proper judgment upon the verdict would be- two thousand dollars with seven per cent per annum interest thereon' from the thirteenth day of November, 1866, to the twenty-ninth day of September, 1870, three years, ten months and fifteen days, amounting to two thousand five hundred forty-two dollars and fifty cents, instead of two thousand six hundred and seventy-three dollars and twelve cents. •

I discover no error in the instructions given by the court to the jury, or in refusing to give the instructions asked by defendant.

It was not necessary for plaintiff to prove that the security given by Bennett for the repayment of the two thousand dollars with the interest stipulated, was at the time inadequate, as the answer admits the fact; and upon the question whether the money was loaned by plaintiff against the advice and independent of the action of his agent, Reed, the evidence is directly and substantially conflicting, and of a character not to justify this court in setting aside the order of the court denying a new trial on this ground.

Cause remanded with directions to the court below to modify the judgment in accordance with this opinion, at the costs of respondent.

We concur: Temple, J.; Rhodes, C. J.; Crockett, J.

Rehearing

p. 697

OPINION ON REHEARING.

January 25, 1872.

— In the former opinion in this ease the statute of April 4, 1870, amendatory of the acts of March 13, 1850, and March 30, 1868, to regulate the interest on money, as also the ease of White v. Lyons, decided at the. same term, were overlooked.

In view of the first-named statute of April 4, 1870, and the case of White v. Lyons, October Term, 1871, I discover no error in the record prejudicial to the rights of appellant.

Judgment affirmed.

We concur: Rhodes, J.; Crockett, J.