Linder Hardware Co. v. Pacific Sugar Corp.

I dissent from the order denying a rehearing. There was a plain and direct issue as to the assign ment of the note given by defendant to Studebaker Brothers Company, and the plaintiff was bound to make proof of that fact. In my opinion the proof was wholly insufficient. According to the weight of authority the treasurer of a trading corporation has no power as such to indorse the negotiable paper of the corporation for sale or discount, and here was no evidence of a special authority—no evidence even that Weaver was treasurer—no evidence of the genuineness of his signature. To hold that the assignment was proved in this case is, in my opinion, to establish a dangerous precedent.

Plaintiff seeks to recover from defendant on three separate counts: For goods sold and delivered, $3,407.47; on an account for labor, alleged to have been assigned to plaintiff, $2,000; on- a promissory note alleged to have been executed by defendant to Studebaker Brothers Company and assigned to plaintiff, $2,370.15. A fourth, based on a promissory note, was dismissed as not then due.'

The defendant did not deny the purchase of the goods, the performance of the labor or the execution of the note, but, by amended answer, set up certain separate defenses: 1. That a new contract of novation was entered into between plaintiff and defendant whereby payment of the .obligation sued upon was postponed and payment was to be made in sugar, thereafter to be manufactured by defendant, instead of in cash; and that performance under the new contract was not due when the action was commenced. 2. That plaintiff acquired ownership of the claim for labor only as a result of the contract of novation; that said claim was part of a larger claim owing at the time to one Hibama, and, as matter of law, this demand, could not be split up without defendant’s consent, to which it did not consent except by…