Pappas v. Union Bond & Trust Co.
| Decision Date | 25 November 1960 |
| Citation | 186 Cal.App.2d 699,9 Cal.Rptr. 218 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Theodore PAPPAS, Plaintiff and Respondent, v. UNION BOND & TRUST COMPANY, a Corporation, Defendant and Appellant. Civ. 9929. |
Falk & Falk, Eureka, for appellant.
Mathews & Traverse, Eureka, for respondent.
This is an appeal from a summary judgment entered in favor of the plaintiff in an action for collection of a promissory note.
It appears from the complaint that the defendant made, executed and delivered for valuable consideration the promissory note in question to Legh Timber Co., Inc., and that thereafter Legh Timber Co., Inc., negotiated it to the plaintiff.
In its answer defendant denied all of the allegations of the complaint except it was admitted that the defendant refused to pay the note sued upon. By cross-complaint defendant brought in Legh Timber Co., Inc., as cross-defendant, and alleged that the note in question was in payment of the execution and delivery of an assignment and a grant deed from Legh Timber Co., Inc., to Klamath Logging Co.; that Legh Timber Co., Inc., did not own the timber interests and real property purportedly conveyed; that there was no interest in said real property except to the extent of one million board feet of timber rather than forth million board feet of timber as represented by Legh Timber Co., Inc., to be its interest therein; that the interest of the Klamath Logging Co. had been assigned to defendant; and that damages had been suffered by defendant's assignors in the sum of $25,000, for which judgment was sought.
Plaintiff then filed his motion for summary judgment under section 437c of the Code of Civil Procedure, supported by affidavits of himself and one Elwood Buffum, Secretary of Legh Timber Co., Inc., setting forth the facts upon which the motion was based. Plaintiff's affidavit discloses: That he is one of the partners of the partnership of Pappas and Stathes; that on December 5, 1957, the partnership transferred to Buffum and Legh Timber Co., Inc., the tug 'Alitak' and the barge 'Commissioner' pursuant to a written conditional sales agreement (a copy of the agreement is attached to his affidavit); that pursuant to the conditional sales agreement Legh Timber Co., Inc., did negotiate and deliver to Pappas and Stathes the promissory note in question for the sum of $16,000, and Elwood Buffum did guarantee payment thereof; that said note was then negotiated and delivered to Pappas and Stathes by Legh Timber Co., Inc., by endorsement thereon; that on August 13, 1958, Pappas and Stathes did negotiate and deliver said promissory note to Theodore Pappas, individually; that Pappas and Stathes notified Union Bond & Trust Company of the negotiation of said note by registered mail; that demand was made upon defendant for the payment of said promissory note by defendant; that said note is due, owing and unpaid; and that each and all of the statements and allegations in his affidavit are true and if sworn as a witness he could...
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