The record-union., 1892-08-17
JUDGMENTS REVERSED.
Two Decisions Flied Yesterday by the
Supreme Court,
One 81 Fresno Case, and the Other
From Butte-What the Court
Says of the Issues.

The Supreme Court filed in Deputy
Clerk Govan's Office yesterday its de-
cision in the case Of Church (respondentl
VS.. Shanklin ct al, of Fresno County.
This was an action brought to foreclose a
mortgage given to secure the payment of
! two promissory notes for the sum of
$1,000 each, payable by defendants TO
! plaintiff whenever he perlects the title
to lots Ia, 10 and I6, in block IS, of Fresno.
to the satisfaction of Church q Cory,
attorneys, . neither principal
nor interest to be due or payable until
said title is perfected as aforesaid, nor
until one year,
The record fails to show" says the
/ Supreme Court, that Church & Cory re-
fused 10 express satisfaction with the
PLAINTIFFS title through any fraudulent
or improper motive. The learned Judge
of the court below, in determining the
issues between the parties, stated he
would assume that the attorneys acted in
| the best Of faith, but held that, if the title
was in fact good, the defendants could
not refuse to pay the note because their
attorneys were not satisfied with the
title.
I'm this we think the court erred. The
/ CAST dO DdI NluGTS III TWO very lltlIeildi
| respects from the cases cited by re-
spondent. The appellants offered to show
at the trial that other reputable attorneys
| did not consider the title perfect, or what
| IS known as understandable title but Oh
| objection OF the plaintiff the offer was
excluded. 1t cannot be claimed, there
| fore, that in rejecting the title Church 81
| Cory acted capriciously, which, if al
/! legged and proved, might be taken as a
| badge of bad faith.
LAS there was no allegation in the COM
/ plant that the action Of the arbitrators
| chosen by the parties was controlled by
| fraud or collision between the defend
ants, or by undue influence of any kind,
we think the demurrer ought to have
been sustained. The notes, according to
their terms, cannot mature, and no ac-
ton thereon can be maintained until
Church d Cory, acting in good faith, state
that i'll their opinion the title has been
shown why they have not done So"
The judgment and order was reversed,
and the cause remanded with directions
to the court below to sustain the demur-
rer TO the complaint. The decision was
by Paterson, and concurred in by Harri-
son and De Haven.
y BUTTE CASE REVERSED.
The court has also filed it's decision in
the case of Guidery, administrator ire
l
brought in Butte County. The plaintiffs
intestate, one Frost, brought the action to
obtain certain specific relief for an alleged
violation OF a written agreement entered
into between him and the defendant
January II, 1885. The defendant set up
as one Of his defenses to the action that
the agreement set out III the complaint
had been superseded and annulleG by a
subsequent written agreement, executed
in March, 1885, by the plaintiff and one
Threliall, on the one part, and the defend
ant on the other.
Upon trial of the cause the defendent.
after having proved the execution of the
subsequent agreement, sought to show
that 1t had been executed upon the con-
Sideration and agreement between the
parties thereto that the agreement of Jan
uary L, 1885, should be cancelled, and all
claims of the plaintiff against the de-
tendent hereunder waived. The plant
if objected to this testimony on the
ground that it was an attempt by parol
evidence to vary and contradict the terms
of a written instrument, and also that it
was not responsive to any issues made
| by the pleadings.
The court having sustained this obiec-
ton, the defendent then presented GER
tain amendments to his answer in order
to obyiate the objection that the evidence
was not within the issues. and asked
leave to file said amendments. To this
the plaintiff objected upon the ground
that 1T Is too late; that it is unconSciona-
bic: that it is taking US by surprise; and
that it shows gross negligence on their
part in not asking TO amend before y
which objections were sustained by the
court.
After going over the case at length the
order of the lower court was reversed
The decision was by Harrison J. and
concurred in by Paterson and Gareatte