Judson v. Gage , 91 Cal. 304 ( 1891 )

The Court.

This is an action upon two promissory notes alleged to have been made by defendant in payment of his subscription to a fund raised by citizens for the purpose of procuring a right of way and depot grounds-for a certain railroad. Plaintiffs had judgment as prayed for, and defendant appeals from the judgment upon the judgment roll, which contains a bill of exceptions.

We think that the complaint is good as against a general demurrer, and that the demurrer was properly overruled, although neither the complaint nor the answer is as certain and full as it should have been.

Appellant further contends that the evidence was not sufficient to support the finding that the notes were given in payment of the subscription; and also contends that the subscription and the notes, which were given several months afterwards, should be considered as one transaction; and that the evidence is not sufficient to support the finding that the conditions of the subscription were complied with. But the evidence is overwhelming to the point that the notes were given in payment of the subscription. As to the other contention, the point made is, that the railroad, by the terms of the appellant’s subscription, was to be constructed through his land, “ on a line running parallel to Dr. Pierson’s north line, and distant about eight hundred feet therefrom,” and that the evidence fails to show that it was constructed on that line. There was some conflict of evidence on this point, but it warranted the court in finding that there was a substantial compliance with this condition. There was testimony to the point that the road was built, substantially, as described in the subscription, and that if there was any slight variance from the rigid parallel line therein mentioned, such variance was with the knowledge and consent of the appellant, and that the road “ did conform to Mr. Gage’s ideas.”

We think that the findings support the judgment, and there are no other points necessary to be mentioned.

The judgment is affirmed.