[2] Had the money been used by defend-, quit the defendant of the charge of larceny ant, as Marie Savage supposed it would, when she delivered it to him for the purpose of being paid to an unidentified but supposedly existing corrupt public official, it would have remained her property until its final delivery to that person. She did not intend to part with the title to the money until it should be delivered to the public officer whom she supposed defendant had or would corruptly influence to issue or procure the issuance of the license. Defendant, as the complaining witness understood the transaction, was her agent to carry her money to the supposedly perfidious official. The title thus remaining in Marie Savage, it was subject to larceny as her property, and the fraudulent appropriation of it by the defendant to his own use, he having had the intention from the beginning to obtain possession of it for that purpose, constituted, in law, the crime of larceny. People v. Delbos, supra. With one exception, presently to be noticed, what has just been said with respect to count 1 applies with equal force to each of the other counts upon which defendant was convicted. The evidence, in every instance where money was paid to defendant, justified the inference that, with the exception of certain smaller sums agreed to be paid to him as a reward for his nefarious services in his assumed character as a corrupter of men, defendant received the sums delivered to him for the purpose of carrying and delivering them to some supposedly corrupt public official, who, as the evidence shows, did not exist. if they also believe that the complaining witness intended parting with the title to defendant. It was proper therefore for the court to explain to the jury what constitutes larceny by trick or device, and the difference between such larceny and the crime of obtaining money by false and fraudulent pretenses. It is, indeed, the duty of the court "in charging the jury," to state therein "all matters of law necessary for their information." Section 1127, Pen. Code. [4] The thirteenth count-one of the counts upon which appellant was convicted charges that defendant, on or about November 1, 1917, feloniously took, stole, and carried away $150, the personal property of one Lyllian Hoffman. It is contended, and, as we think, correctly, that the verdict of conviction on this count is contrary to the evidence. The thirteenth count was based upon an alleged payment of $150 to defendant by Lyllian Hoffman to secure the renewal of her license on November 1, 1917. On direct examination, when asked if she had paid defendant any money to get this renewal, the Hoffman woman replied: "If I did I gave him $150 when I got it [the renewal license] for myself." On crossexamination, in reply to a question asking her if she gave defendant any money for the renewal, she said: "I do not know whether it was in November then or-no; I did not pay for that; no, sir." This evidence directly negatives any claim that defendant ever received any part of the $150 which, in the thirteenth count, he is charg not been called to any other evidence tending to show that defendant was ever paid any money to procure this particular renewal of Lyllian Hoffman's license, and our own independent search of the record has failed to disclose any evidence to support defendant's conviction upon this count of the indictment. [3] It is further contended by appellanted with having stolen. Our attention has that the court erred in that it gave an instruction which, according to appellant, misled the jury to his prejudice. It seems that, notwithstanding it had dismissed every count that charged defendant with obtaining money by fraudulent representations and pretenses, the court, nevertheless, gave an instruction wherein it pointed out the distinction between larceny and the crime [5] The jury brought in a separate verof obtaining money by false pretenses. Ap-dict on each of the ten counts upon which pellant, conceding that the instruction it- defendant was convicted. This was doubtself embodies a correct statement of the less a sufficient compliance with section 954 law, argues that it prejudiced his case in of the Penal Code, as amended in 1915 (St. that it was an invitation to the jurors to 1915, p. 744), whereby it is provided that convict him of the crime of larceny if they "each offense upon which the defendant is believed him guilty of obtaining the moneys convicted must be stated in the verdict." by false pretenses. We fail to see any force Upon each of the ten verdicts of conviction in the objection. Where, as here, posses- the court, at the time appointed for sension of money is obtained by fraud, trick, or tence, pronounced, and the clerk entered, a device, the question whether the crime, if separate judgment; each judgment being in any there be, was larceny or false pretenses, the form of an indeterminate sentence as often depends upon the nice analysis of provided by the indeterminate sentence law. facts and legal principles. For this reason Section 1168, Pen. Code, as added March 18, it is allowable, in such a case, to give an 1917 (St. 1917, p. 665). Appellant makes no instruction pointing out the distinction be- objection to the form of the judgment, nor tween these two classes of crime, in order to the fact that, in form, there was a sepathat, if the jurors believe the money was rate judgment upon each of the ten ver (185 P.) stances, we see no impropriety in the procedure thus adopted by the trial court. As we have said, appellant makes no point respecting the form of the judgment, or that, in form, it appears to consist of ten separate judgments, each based upon a separate verdict of conviction, and we advert to the matter solely because of the form that our judgment must take, owing to the situation presented to us by the record here. A careful examination of the entire record convinces us that, with the single exception that the evidence fails to support the verdict of conviction of the crime charged against him in the thirteenth count, defendant had a fair and impartial trial, free from any prejudicial error. Appeal from Superior Court, San Joaquin County; J. A. Plummer, Judge. Action by H. Yoshizumi against the Platt Produce Company. Judgment for plaintiff, and defendant appeals. Affirmed. Snyder & Snyder, of San Andreas, for appellant. Shelton & Levy, of San Francisco, for respondent. ELLISON, Presiding Judge, pro tem. The complaint alleges that on August 11, 1917, plaintiff and defendant entered into a contract in writing, whereby plaintiff agreed to sell and defendant agreed to buy 540 sacks of potatoes, at the agreed price of $3 per The judgment wherein it is recited that sack, of 116 pounds each, and that said proddefendant was found guilty of the crime of uct should be delivered, starting at the last grand larceny as charged in count 13 of the of the ensuing week, f. o. b. boat, at McDowindictment and adjudging that he be punish-ell Camp, No. 231⁄2, San Joaquin county. ed for the crime so charged in said count It was further agreed that delivery of by imprisonment for an indeterminate pe- said product on board of boat would constiriod, and likewise so much of the order deny- tute full and complete acceptance thereof; ing defendant's motion for a new trial as that plaintiff duly performed all the condidenies him a new trial of the issues pre-tions of said contract and started to deliver sented by the thirteenth count, are reversed. In all other respects the judgment or judgments and the order or orders appealed from are affirmed. We concur: SLOANE, J.; THOMAS, J. (43 Cal. App. 673) YOSHIZUMI v. PLATT PRODUCE CO. (Civ. 2020.) said product on the last of the ensuing week, and on August 27, 1917, 540 sacks of said product were on the river bank at said camp, ready for inspection and transportation by the defendant by means of water craft; that it is the definite, well-known, and uniform custom and usage of the purchasers of potatoes in the vicinity of Stockton and on points located on the San Joaquin river and its tributaries to inspect the product while on the bank, and to send water craft to such point to take delivery thereof; that plaintiff notified defendant on August 27, 1917, that said (District Court of Appeal, Third District, Cal- product was on the bank, and defendant ifornia. Oct. 20, 1919.) 1. CUSTOMS AND USAGES 15(1, 2)—ADMIS- In an action for breach of contract to buy potatoes to be delivered f. o. b. boat at a certain camp, evidence showing that it was customary for the purchaser of potatoes along a certain river to provide boats for the transportation of potatoes bought, and that delivery was ordinarily made by bringing the potatoes to the banks of the river, held admissible to show on whom the burden of providing boats was imposed, and to show that "f. o. b. boat" meant on the wharf ready for the boat. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series f. o. b.] 2. EVIDENCE 99-RELEVANCY. In an action for damages for breach of con tract to purchase potatoes to be delivered f. o. b. boat at a certain camp, where plaintiff testified that the captain of the boat refused to accept the shipment, orders from his employer to the captain were incompetent to prove what the captain said or did at the landing. thereupon, and again on August 31, 1917, assured plaintiff it would send a barge to obtain delivery thereof; that defendant failed to do so prior to September 3, 1917, and on that day plaintiff demanded that defendant take delivery of said produce, and notified defendant that in default thereof plaintiff would sell the same to defendant's account to the best advantage; that on September 3, 1917, a barge belonging to one R. H. Vehmeyer called at said camp, and the agent thereof took possession of said product, loaded it on said barge, and transported it to a warehouse at Stockton; that said Vehmeyer thereupon notified defendant thereof, and defendant instructed him not to enter said product in said warehouse in its name; that thereupon plaintiff sold said product for $1.90 per sack, or for the sum of $1,026, to his damage in the sum of $594, for which amount he prayed judgment. The court found that plaintiff had performed all of the conditions of said contract on his part to be performed, and started to | deliver said product at the last of the ensuing For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 185 P.-44 week, as therein provided, and on August 22, 1917, said 540 sacks of potatoes were on the river bank at said camp, ready for transportation by the defendant. The court also found that "It is the definite, well-known, and uniform custom and usage of the purchasers of potatoes in the vicinity of Stockton and on points on the San Joaquin river and its tributaries to send water craft to points on said river bank to take delivery of such product," and, "in previous transactions with plaintiff, defendant had sent such means of transportation, and in respect of the transaction here in controversy made an effort to procure the same." Judgment was rendered for the plaintiff for the amount stated in the prayer of the complaint. The defendant appeals. [1] Over the objection of the defendant evidence was introduced to support the allegations as to the custom and usage in the matter of getting boats to move produce, and it is appellant's contention that such evidence was inadmissible and that it tended to vary the terms of a written contract, one in no wise uncertain. The decisions seem to be quite uniform to the effect that proof of custom and usage is admissible to determine upon whom, in a case like this, the burden was imposed of providing a boat upon which the produce could be loaded, and admissible to prove that f. o. b. means on the wharf, ready for the boat. It is to be observed that the contract is silent concerning who was to provide the boat. In this particular it is uncertain and indefinite. In Meyer v. Sullivan, 181 Pac. 847, it is said: court's finding that it was and is a general custom, among buyers, sellers, and shippers of wheat in the city of Seattle, and in the city of San Francisco, and generally, in Pacific Coast ports, 'under contracts for the sale of wheat f. o. b. steamer, or f. o. b. designated steamer, for the seller to deliver and for the buyer to receive and accept the wheat upon the dock alongside of ship's tackle.'" 181 Pac. 849. In Consolidated Coal Co. v. Schneider, 163 Ill. 393, 397, 45 N. E. 126, 128, the court said: "The fact that appellees were required by the contract to deliver the coal free on board of the cars at the mine can have no bearing on the question in regard to whose duty it The furnishing cars at was to furnish cars. the mine, to be filled with coal, was an independent matter, in no manner connected with the duty of filling the cars. When the cars were furnished, then it devolved on appellees to fill them free of any expense to appellant; but, until the cars were furnished, they were required to do nothing, except to have the coal ready. It being the duty of appellant to furnish the cars, under the contract, its failure to discharge this duty was a clear breach of ready and willing to furnish the coal, were enthe contract, for which appellees, who were titled to recover." See, also, Evanston, etc., Co. v. Castner (C. C.) 133 Fed. 409. [2] There was no error in admitting this testimony. When The plaintiff testified that barge No. 11 was at Camp McDowell after the potatoes had been placed on the landing; that he asked the captain to take them on the barge, and he refused, saying he had no orders to do so. The captain, in rebuttal, testified he did not remember whether he made the statement or not. He was then asked if he did not have orders on each trip to bring in all potatoes for the Platt Produce Company that were ready to be loaded. An objection to this and similar questions was sustained, and the ruling is assigned as error. the witness Lenning was testifying, the defendant, as part of the examination, offered in evidence the order made by the transportation company and given by it to Mr. Lenning, the captain of the barge, directing him where to go on the trip and what products to load. An objection to the evidence was sustained, the court remarking that the witness could use the order that he took with him to refresh his memory. This ruling of the court is assigned as error. The witness, following the remark of the court, stated: "Here is my logbook; just exactly what I did at the landing." The defendant, instead of acting upon the suggestion of the court that the witness might use the order he had with him to refresh his memory, and instead of taking advantage of the statement of the witness that his logbook showed exactly "In order to determine whether or not delivery was to be made on the deck of the Kosmos steamer, as contended for by defendants, or merely on the Arlington dock, in Seattle, as claimed by plaintiffs, the trial court admitted evidence of the nature of the transaction, and the usages and custom of the trade in such matters. Appellants vigorously attacked the findings and conclusions of the court, and particularly its action in admitting testimony in proof of the custom of the trade. "We are satisfied of the correctness of the trial court's findings in these matters. The fact that the parties to this action have come to such a vigorous disagreement over the meaning of the terms of the contracts is some indication that the court might be compelled to look to other sources of information than the contracts themselves in order to arrive at a proper interpretation of the disputed point. That the evidence of usage and custom was properly considered by the trial court in determining the place of delivery of the wheat contemplated by the parties under the f. o. b. clauses of the contracts is borne out by the authorities. Cowas-Jee v. Thompson, 5 Moore P. C. 165; 13 Eng. Reps. 454; Stock v. Inglis, 5 Asp. M. C. 294; George v. Glass, 14 U. Can. Q. B. 514; Marshall v. Jamieson, 42 U. Can. Q. B. 115. (185 P.) the landing, reverted to his original question [ment for plaintiff, defendant appeals. Afof what his orders were. The court correct-firmed. ly ruled that his orders from a third party were not competent to prove either what he of Los Angeles (A. W. Ashburn, of Los R. L. Horton and Gurney E. Newlin, both said or did at the landing. For the purpose Angeles, of counsel), for appellant. for which the orders were offered they were neither relevant nor competent. People v. Mitchell, 94 Cal. 550, 29 Pac. 1106; Butler v. Estrella Raisin Co., 124 Cal. 239, 56 Pac. 1040. We find no error in the record, and the judgment is affirmed. We concur: BURNETT, J.; HART, J. (42 Cal. App. 597) (District Court of Appeal, First District, Divi- 1. SALES 413-NECESSITY OF PLEADING FRAUD IN NOTE AS DEFENSE. In an action against a lumber company for its refusal to deliver lumber to which plaintiff claimed to be entitled by virtue of an assignment of a credit for lumber given to plaintiff's assignor, who had indorsed over to the lumber company a note received by the assignor from a third person, the defense of fraud in the inception of note, etc., is not available where not pleaded. 2. BILLS AND NOTES 171-INDORSEMENT WITHOUT RECOURSE HELD NOT TO AFFECT NEGOTIABILITY. That a note negotiable in form is indorsed without recourse does not destroy its negotiability. Scarborough & Bowen, of Los Angeles, for respondent. BARDIN, Judge pro tem. This is an appeal from the judgment in favor of the plaintiff. The action was brought to recover damages because of the refusal of the defendant to furnish to plaintiff a quantity of lumber which plaintiff claims he was entitled to receive. The controversy between plaintiff and defendant is the outgrowth of the execution and delivery of a promissory note of one Henry E. Bothin to Southern California Utilities Company, for $5,000, dated December 3, 1913, payable one year after date. Simultaneously with the delivery of this note there was executed in favor of and delivered to Mr. Bothin, five $1,000 notes of said company. Pursuant to the resolution of Southern California Utilities Company, the Bothin note was indorsed without recourse and placed in the hands of one Franklin Helm, the promoter of the Southern Utilities Development Company, for negotiation. It was the understanding of Mr. Bothin at the time he executed this note that it would be negotiated in order to raise funds to be disbursed in the development of an irrigation project, which, if consummated, would result in his own financial gain. Helm employed one Vigus, a broker, to sell the note, and a sale thereof was made to Hammond Lumber Company, a corporation, the defendant 3. BILLS AND NOTES 170-NEGOTIABILITY herein, by the terms of which, as found by Where a corporation induced a third person to execute a note to plaintiff's assignor, the corporation giving the maker its own notes and plaintiff's assignor indorsed over the note to the defendant lumber company, in consideration of its agreement to furnish him with lumber, held, that the contracts were supported by sufficient consideration, and, where the credit in favor of plaintiff's assignor was assigned to plaintiff, the lumber company could not justify its refusal to furnish plaintiff with the lumber on the ground that the consideration for the original note which had been assigned to the lumber company remained executory. the court, it was agreed by the defendant to pay to said Helm the sum of $4,500, which was to be credited upon defendant's books in the name of Franklin Helm, and that the same would be paid by the defendant in lumber at market prices whenever demanded by Helm. Such credit was accordingly entered upon the books of the defendant in favor of said Helm. For his services as broker, Vigus received a like credit for $500. Previous to the delivery of the Bothin note to the defendant, and in addition to the indorsement already stated, the following was written upon it: "I hereby guarantee payment of this note, waiving protest, notice of nonpayment and demand. Franklin Helm." The manager of the defendant testified that but for this guaranty of the payment Appeal from Superior Court, Los Angeles not have purchased the note. of the note by Helm the defendant would County; Grant Jackson, Judge. During the month of December, 1913, Helm Action by W. V. Ambrose against the applied to plaintiff for a loan of $3,250, Hammond Lumber Company. From a judg-offering as security the said "credit memo For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes randum" for $4,500, payable in lumber, representations going to the intended use of standing on the books of defendant. Before the proceeds of the note when negotiated. making the loan to Helm, the plaintiff, with But the pleadings do not tender such an isHelm and the broker, Vigus, went to the of- sue. Fraud not having been pleaded, we fice of the defendant and, as Ambrose testi- do not see how such a defense is available fied, "asked the bookkeeper if they owed to the defendant (San Francisco Mercantile Franklin Helm $4,500 which was to be paid Union v. Muller, 18 Cal. App. 174, 122 Pac. in lumber, and he turned to his ledger sheet, | 828), even though there were no other legal and said 'Yes, he has a credit here of $4,500 obstacles in the way of the consideration of on the book.' Mr. Helm says, "Transfer this such defense. to Mr. Ambrose name,' which was done in the presence of Mr. Helm, Mr. Vigus, and myself. I saw that transfer made to my name on the books of the Hammond Lumber Company in my presence." Following the transaction at the office of defendant, the plaintiff loaned Helm the sum of $3,250, taking the note of Helm payable in three months. Upon nonpayment of Helm's note at maturity, Ambrose and Helm made a supplemental oral agreement, the effect of which was that the credit standing upon the books of defendant was to be considered the property of plaintiff without condition and Helm's indebtedness to Ambrose to be deemed paid. Deliveries of lumber aggregating in amount and value $1,004.95 were made to plaintiff as requested, until August 10, 1914, when defendant refused to deliver any more lumber on the credit referred to, basing its refusal so to do in effect upon the ground that the Bothin note had been issued without consideration. [2-4] The Bothin note is in form a negotiable note. It was made expressly to be negotiated. It was indorsed without recourse by the original payee, which did not destroy its negotiability. 8 C. J. 370. And neither did the fact that Helm guaranteed its payment affect its negotiability. It seems to have been purchased by defendant in good faith in due course of business, before maturity and, in view of all the circumstances of the case, for a valuable consideration. We cannot agree with counsel for the appellant that the consideration for the Bothin note continued to be executory after the transfer of the credit in lumber to the plaintiff. Such transfer, under the circumstances already noted, operated as the creation of a new contract which the defendant should not be permitted to disregard. The promise of the defendant to make deliveries of lumber to plaintiff was supported as to consideration, by the detriment suffered by the plaintiff in loaning $3,250, which would not have otherwise been made, and which five promisory notes of the Southern California Utilities Development Company to Bothin was, of itself, sufficient consideration for the support of the Bothin note. 8 C. J. 227. On December 16, 1914, Mr. Bothin enter-loan was never repaid. The delivery of the ed into an agreement with the defendant indemnifying it against any loss that might be sustained by it, because of nondelivery of any additional lumber under the aforesaid credit standing on its books, and the defendant, in consideration of such agreement to save it harmless, agreed to furnish no additional lumber upon said credit. The present action was instituted on June 12, 1915, to recover as damages the balance claimed to be unpaid upon the credit referred to, with interest. [1] It is the contention of the defendant: "That plaintiff was the owner of a nonnegotiable instrument subject to all equities and defenses existing against his assignor, Helm; that the Bothin note was valueless, and subject to many infirmities in the hands of the defendant due to the fact that defendant gave only an executory consideration for the same. It is also claimed in the briefs of the appellant that the Bothin note is valueless and subject to infirmities in the hands of defendant because of fraud alleged to have been committed by Helm at the inception of the note, and stated to consist of fraudulent At the time of the refusal of the defendant to deliver lumber to the plaintiff, the Bothin note had not matured. How could the defendant then know that it could not realize upon Helm's guarantee of the payment of that note at maturity? Counsel for the respective parties have been very industrious in the preparation of their respective briefs, and have favored the court with every assistance at hand for the proper solution of the controversy. After a careful consideration of all the arguments pro and con, we, perceive no reason why the judgment in favor of the plaintiff should not be affirmed. If Mr. Bothin executed his note because of fraudulent representations of Southern California Utilities Company, or of its agent, or if he is entitled to redress of some nature, he must seek it in some proper action. The defendant may not adjudicate those matters for him in this action. Judgment affirmed. We concur: WASTE, P. J.; RICHARDS, J. |