John T. Porter Co. v. Java Cocoanut Oil Co.

By an instrument in writing, bearing date April 26, 1920, Warren R. Porter pledged to the John T. Porter Company 120 shares of the capital stock of the Pajaro Valley Savings Bank and 60 shares of the capital stock of the Pajaro Valley National Bank to secure the payment of his indebtedness to the Porter Company, amounting to the sum of $19,000, evidenced by a promissory note bearing date December 12,1919. The original date of the note was December 12, 1920, but this was changed to December 12,1919. On the 14th day of September, 1920, both blocks of stock were attached by the United States marshal for the Northern district of California, under and by virtue of a writ of attachment, issued out of the District Court of the United States for that district in a certain action therein pending, wherein Warren R. Porter was plaintiff and plaintiff herein was defendant. On the 25th day of January, 1922, the plaintiff herein became the purchaser of the stock of the two banks at an execution sale under a judgment in favor of the defendant and against the plaintiff in the action wherein the writ of attachment issued. On the 27th day of January, 1922, the Porter Company served written notice…

(dissenting). The court made no finding of fact. Confronted upon the one hand with the positive testimony of witnesses who had knowledge of the facts, and upon the other by circumstantial evidence apparently inconsistent therewith, the court was unable to decide that the one outbalanced the other, and rendered a decree for the appellee upon the ground that the appellants had failed to sustain the burden of proof. Upon a careful consideration of the testimony I am wholly unable to assent to the proposition that the evidence so offered upon the part of the respective litigants stands in equilibrio. The witnesses for the appellants, while in the main they were interested parlies, are unimpeached, and presumably are reputable persons entitled to credit. Their testimony is positive and direct, and they had first-hand knowledge of the matters of which they testified. Their evidence should receive credence as against the suspicious circumstances which are relied upon by the appellee, and which, for the most part, are explained.

Warren R. Porter was indebted to the Porter Company on an open account, which had been carried upon the company’s books since 1913. It is not disputed that…