The record-union., 1891-02-09

bey and McLennan, by means of which
RalSton became possessed of the note,
had it renewed and placed the renewed
note in the bank for collection as de-
posted for his own account individually,
and used the proceeds personally.
Another circumstance appears in the
case, in the evidence of MeLennan, and
that is, that although he says that Ralston
told him the money had been collected on
the note, and placed to MeLennan's credit
in the Bank of California, that he never
once made any inquiry of any one else
about the bank if such was the fact,
never made any demand for it for years
afterwards, or during Ralston's hfe-rime,
except to- Ralston, and never drew a
check against it, or made any effort to
get it, as is usual in cases when men have
money on deposit in banks.
After Ralston's death, and during the
temporary suspension of the bank, this
action is brought, and when large alleged
Indebtedness of McLennan to the bank is
barred by the statute of limitations, and
his claim being against bank cannot be
likewise barred. All these facts were be-
fore the trial court.
In addition to certain suspicious facts
and circumstances, which time does not
admit of mention, it appears in the testi-
mony of McEennan, that he first posi-
lively and emphatically declared that he
Idu ITO lHleTGSb Ut cisiliH III Uli6 UHlfu HOte.
And afterwards (folios iI07-S, 123-4-5), de-
clared that he had. The reason which he
assigns for not claiming this interest in
the first instance being as stated by him.
self, in answer to questions by his coun-
sci, which questions and the answers are:
% This morning you We're asked in re-
gard to the first and second notes, and
you said that the third note was not
yours. / should like to know if you have
any explanation to make about that?
"A. Well, L made a great mistate this
morning, because | thought that not hay
ing any physical connection in the third
note. that it might not belong to me, or it
might prejudice my standing in court. l
at once saw my mistake, and beg now to
correct it. L claim ownership in that
note, the same as the other two notes. l
claim ownership in any note having any
connection with the transaction.
90. You also said that you never au-
thorized or ratified the taking up of the
third note. What do you mean by that?
"A. Well, 1 mean to say by that, what
ever the bank done in connection, OF in
the shape of an accommodation to the
mill, of course it was no doingS OF mine,
any more than the proceeds from any ac-
commodation they might afford the mill.
| claim the payment-claim the money"
(Trans., fols. 155-6-7.)
From this it seems as if the witness
thought himself justified in making his
recollection conform to his supposed in
tereSts, and that he was ready to and did
make what he calls mistake" in his
own favor, as to the statement of a fact,
or claim of interest, when to do other
wise and state the fact or claim correctly,
would, us he said, 'prejudice may standing
an cO2t7t.'
Space forbids us enumerate all the
other instances, either, as claimed,
resulting from the want of recollection, or
otherwise, where it would seem that the
witness caused Intestinal conflicts in
his testimony, or made statements in
herently improbable IN their nature. But
such appears to us to have been the
character of his testimony, and
under such circumstances we do not
see, in view of the decisions of the appel
late court of this State, that the trial court
was compelled to regard as true his state
ment as to how Ralston became possessed
of the note. Crook VS.. Forsythe, so Cal
662; Bernal VS.. Wade, 46 Cal. 667; Blank
man VS.. Vallejo, 15 CAL 639-646; Baker VS..
Fireman's Fund Ins. Co., 79 Cal. 34-4l; !;
Mogk VS.. Peterson, rs Cal. 50l.)
Mr.. Tibbey's mistakes and corrections
also leave it doubtful if his recollection of
the facts just as they occurred when
and besides the peculiar relations be-
tween Ralston and McLennan, and
all the facts and circumstances sur
rounding the transaction, and the con-
duct Of the plaintiff afterwards, as above
adverted to, might well cause the trial
Judge to doubt the correctness of the
memory of the witness.
1t is further claimed that the books of
the bank showing the alleged indebted
ness of the plaintiff, as set up by counter
claim, were inadmissible in evidence.
The transactions of bank, relating in
large measure with its customers, to the
receipt of money from them and the pay
ing Of it out to them, on loan or check, it
would seem as if their books showing the
original entries of such transactions are
admissible and competent evidence for
the bank. Morse on Banks, Sd ed. Sec.
295, note, pages $40, 511; Union Bank VS..
Knapp, 3 Pickering, Mass. 96, 100; Wat
son VS.. Phoenix Bank, 8 Met. Mass. 2l7,
22O. 221.)
Even if the claim Of the defendant was
barred by the statute of limitations, this
did not render this evidence to show
the original Indebtedness inadmissi-
BILE, for it might happen in such case
that the party introducing it would be
able to show facts which would take it
out of the operation of the statute, and
after the date of the claim and its nature
are shown, it then becomes question for
the court to determine from all the evil
dence whether such claim is or not en-
under the statute. While a
recovery on such claim may be barred,
this does not render proof of the claim in
the first instance incompetent. Besides,
the findings of the court are that the claim
was barred, hence the plaintiff is not
The same rule applies to the
objection to the admission in evidence of
the promissory note for $l6,S41 75, exc
cuted by the plaintiff to the defendant.
1,,4l, OlN 4 l.
admission or exclusion Of evidence. We
have given to arguments made and au-
thorities cited minute and thorough con-
and have examined the tran
script carefully, but we cannot see
any prejudice could have been
suffered by the plaintiff.
The decision of the court was. unoues-
correct, and even if some evil
dence was admitted and other evidence
excluded, perhaps improperly, it yet ap-
pears that, even then, the evidence unob-
jected to in the record was unaffected, as
that admitted against objection, and that
excluded was not of sufficient import
ance to change the result. Perceiving no
error in the record we advise
that the order appealed from be affirmed.
FOoTE, G.
l concur:
BELCHER, G.
THE COURT.
For the reasons given in the foregoing
opinion the order appealed from is af-
firmed.
Filled February 3, 1911
Appeal from Superior Court of San
Diego County Puterbaugh,
Judge.
For appellant, l.. L. Boone.
For respondent, Reinoehl & Harrison
nEp A prCNf nNE
Russ LUMBER, AND MILL
COMPANY, Respondent,
G. A. GARRETTSoN EFT AL,
Appellants.
The plaintiff, corporation, brought
ibis action to foreclose lien for materials
furnished for and used in the erection of