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PACIFIC FINANCE CORPORATION v. FIRST NAT. BANK OF PUENTE.a1
Plaintiff, suing as owner and holder in due course, brought action against the defendant on the following bill of exchange:
“The First National Bank of Puente 90-651
“Puente, California, Oct. 17, '30 19....6742
“Pay to the order of Pacific Finance Corporation, $9,702.28 Registered * *9,702 Dol's 28 cts.
“To First National Office, Security-First National Bank of Los Angeles, Los Angeles, California,
“Geo. L. Lower, Cashier.”
It is evident that both of the parties to this action, as well as the trial judge, used the terms bill of exchange, draft, and check synonymously, as there is involved herein but one instrument, which is referred to by these various designations.
Upon trial of the action, it was stipulated between the parties that, in the event plaintiff was entitled to judgment, it be for the sum of $4,902.02, with interest. From a judgment in favor of plaintiff, defendant prosecutes this appeal.
It appears from the record that, before the bill of exchange was drawn, correspondence consisting of three letters passed between the plaintiff and defendant. On October 8, 1930, defendant bank wrote plaintiff corporation requesting it to forward to the bank for collection a chattel mortgage and note secured by 101 head of cattle, stating that arrangements had been made to pay off the loan. Plaintiff on October 9, 1930, replied by letter of the plaintiff “by T. Spencer” to the effect that it was against its policy to send out papers and releases before it had received payment in full, but that upon payment of $9,635.90, with interest at 8 per cent. from September 17, which was the balance due on the chattel mortgage, it would send to defendant the necessary papers together with releases.
In reply to plaintiff's letter of October 9th, defendant bank on October 17, 1930, wrote to plaintiff inclosing the bill of exchange which is heretofore set out in this opinion, and requested plaintiff to send to defendant bank the release of chattel mortgage and other papers. Whereupon, on October 22, 1930, plaintiff acknowledged receipt of the draft for $9,702.28 as payment in full of the balance due on the chattel mortgage, and inclosed therewith chattel mortgage, note, and release. Immediately after depositing in the mail its letter of October 17th with inclosed bill of exchange, defendant sought to recover same through the post office, but was unsuccessful in its attempt, and, within fifty minutes after said deposit was made, the cashier of defendant bank telephoned to plaintiff corporation and engaged in conversation with Spencer, in which the cashier asked that the bill of exchange be returned to defendant owing to a hitch in the deal, Spencer replying: “Well, it has not gotten here yet, so I don't see any reason why we cannot return it to you.” Mr. Spencer testified upon cross-examination that “someone called stating that they had sent a draft paying off this paper and stating that in the rush of business of the afternoon they had made a little slip and they requested that we not put it through the bank, that we send it back. In reply I said I would look into it, that I saw no reason why it should not be returned.” Meantime, defendant stopped payment on the bill of exchange, and, upon presentment of same by plaintiff, payment was refused by the bank upon which it was drawn.
Upon this appeal, appellant urges reversible error because of insufficiency of the evidence to sustain the findings and judgment, contending that the evidence conclusively shows a revocation of the offer to enter into a contract before the offer was accepted, and that, therefore, the finding of the existence and ownership of the contract is not supported by the evidence. In support of this contention, appellant urges that the letter of October 8th from defendant to plaintiff was an offer which was rejected by plaintiff's letter of October 9th, but that the letter of October 9th invited an offer from defendant, suggesting the general terms upon which such offer should be made. It is then urged by appellant that the letter of October 17th constituted the suggested offer, and that the plaintiff attempted to accept the offer therein contained by its letter to defendant dated October 22d, but that the offer contained in the letter of October 17th had been withdrawn or revoked by defendant before it was communicated to or accepted by the plaintiff. Appellant further urges that, assuming, for the sake of argument, that the letter of plaintiff to defendant dated October 9th contained an offer to defendant which it proposed to accept in its letter of October 17th, the evidence shows such acceptance was withdrawn before it was communicated to the plaintiff.
We believe that the letter of October 9th written by plaintiff constituted a rejection of defendant's offer of October 8th, and that, when defendant mailed its letter of October 17th inclosing the bill of exchange, that act would have constituted an acceptance of the offer, but for the fact that such acceptance was withdrawn before it was communicated to the plaintiff. The evidence stands uncontradicted that plaintiff's representative Spencer, who made the offer of October 9th, was on October 17th notified of defendant's withdrawal of the letter of acceptance of the then outstanding offer, and that Spencer made reply as hereinabove stated. At that time said letter of October 17th had not been received. We think that, under these facts, plaintiff never became owner of said bill of exchange.
The judgment is reversed.
YORK, Justice.
We concur: CONREY, P. J.; HOUSER, J.
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Docket No: Civ. 8390.
Decided: December 07, 1934
Court: District Court of Appeal, Second District, Division 1, California.
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