Gradwohl v. Harris , 29 Cal. 150 ( 1865 )

By the Court, Shafter, J.

The plaintiff sues as assignee of Waugenheim & Blum. The assignment is denied by the defendants in their answer. Waugenheim & Blum intervened, alleging that they were and ever had been the owners of three fourths of the claim in suit, and praying judgment for the amount. The case was tried by the Court and judgment was entered for the plaintiff and intervenors to recover of the defendants the whole claim as an entirety; and it was further ordered and adjudged that the plaintiff was entitled to one fourth of the amount and the intervenors to the other three fourths.

First—The evidence of the plaintiff to prove that the entire claim was assigned to him, was an indorsement in blank by Waughenheim & Blum of a document signed by the defendants, in which the amount due on the contract in suit was stated at three thousand seven hundred and thirty-six dollars and forty-six cents.

Though it was in fact understood by the parties that the beneficial interest to pass by the assignment was limited to one fourth of the claim,, still the plaintiff, as holder of the legal title, could sue for and recover the whole amount. ' It was competent, however, for the assignors to assert their equitable right by intervening in the action. Had they not intervened they would have been bound by the direct and legal operation of the judgment. (Horn v. The Volcano Water Company, 13 Cal. 62.)

Second—Exhibit “ B,” (the document before mentioned,) signed by the defendants, was admissible in evidence for the purpose of proving the amount due under the contract upon which the complaint was framed. That contract was not merged in the agreed statement of the amount due upon it.

Though the statement speaks of the contract as having been made by the defendants on behalf of the Silver Mountain Toll Road Company, yet it is apparent on inspection that the defendants contracted as principals; and furthermore, the pleadings show that the company was but a common partnership, of which the defendants were the principal, and, so far as was known to the intervenors, the only members. We therefore consider the agreed statement given in evidence, as relating to a debt due from the defendants personally under the contract declared on.

There can be no just pretense that either the contract or the statement of the amount due have anything to do with the Statute of Frauds. The contract was an original undertaking on the part of the defendants, and not a promise to pay the debt of another; and in view of the identity between the Toll Road Company and the defendants, it is apparent that whatever is said in the statement about the company is said in effect by the defendants of themselves.

The statement was, however, but an admission on the part of the defendants of the amount due from them, and they are not estopped from showing the admission to be inaccurate. Admissions which have not been acted on, and which the party may controvert without any breach of good faith or evasion of public justice, though admissible in evidence, are not conclusive against him. It follows that the ruling of the Court, excluding the defendants’ evidence to show error in the written admission of the amount due and payable in gold under the terms,of the contract, was erroneous.

Judgment reversed and new trial ordered.

Mr. Justice Rhodes expressed no opinion.