and in said paragraph 9 specifically enumerated, the defendant was on each of said respective dates entitled to have said bill of lading and the oranges represented by each bill of lading that was attached to each of said drafts held by plaintiff as security for the acceptance and payment of said drafts. 2. That thereafter, and on or about the said respective dates, and while the defendant was so entitled to have said bills of lading, and the oranges represented thereby, held by plaintiff as security for defendant as aforesaid, at the said city of Redlands, plaintiff, without the consent or knowledge of defendant, took each of said respective bills of lading, and all the oranges represented thereby, and converted each of said respective bills of lading, and all of the oranges represented thereby, to its own use. 3. That each of said bills of lading, with the oranges represented thereby, so wrongfully taken and converted by plaintiff to its own use, was at the time and place of said conversion worth more than the face value of the draft to which such bill of lading was attached. Wherefore, the defendant prays that the plaintiff take nothing by its complaint in this action against defendant, and that defendant have and recover of plaintiff her costs herein expended. [Verification.] Edward R. Annable, Attorneys for defendant. FORM No. 788-Action upon guarantee of drafts with bills of lading attached. (In First National Bank of Redlands v. Bowers, 153 Cal. 95; 94 Pac. 422.) [Title of court and cause.] Now comes the plaintiff above named and, by leave of court first had and obtained, files this its second amended complaint, as amended, and for cause of action alleges: 1, 2. [Averments as to incorporation of plaintiff company, and of the Haight Fruit Company.] 3. That the said Haight Fruit Company was during the years 1897 and 1898, and for many years prior thereto, had been engaged in the business of dealing in fruits in southern California, buying, selling, packing, and shipping the same to the various markets of the United States and Canada, and having its principal place of business in the city of Redlands, and dealing largely in the citrus fruits of southern California, and that being desirous of financial assistance to enable it to carry on its said business for the season of 1897 and 1898, applied to plaintiff herein to furnish it the funds for that purpose; that the plaintiff agreed to make such advancements to the said Haight Fruit Company for the said season of 1897 and 1898, in the event that the same should be guaranteed by a good and sufficient guarantor; that the defendant herein, in consideration of such advances, and to obtain funds for the said Haight Fruit Company to carry on the said business, and for divers other good and valuable considerations, did, on the 1st day of December, 1897, execute to this plaintiff a written guaranty in the words and fig ures following, to wit: "Redlands, Cal., Dec. 1st, 1897. To the First National Bank of Redlands, Cal. I hereby guarantee to said bank 90 per cent of the face of all drafts for oranges, with B/L attached, and drawn by the Haight Fruit Co. in favor of said First National Bank, during the season of 1897 and '98. Gertrude S. Bowers." 4. That the letters "B/L" in said guaranty mentioned were intended and understood by both plaintiff and defendant, at the time of the making and execution of said guaranty, to represent and express the words "bill of lading"; that the words in said guaranty set forth, to wit, "face of all drafts," at the time of the making and execution of said guaranty, were understood by both plaintiff and defendant herein to mean the face of each and every draft for oranges, with bill of lading attached, drawn by the Haight Fruit Company in favor of the First National Bank of Redlands during the orange season of 1897 and 1898, and it was with that understanding as to the significance of said guaranty that the same was signed by defendant and accepted by said First National Bank of Redlands. 5. That thereafter, and during the time referred to in said written guaranty, to wit, during the orange season of 1897 and 1898, the Haight Fruit Company packed and shipped various carloads and lots of oranges to various and divers persons in various parts of the United States, and made drafts upon the respective parties to whom said lots and carloads of oranges were shipped for the purchase price of said respective lots and carloads when the same had been sold, and for about three-fourths of the value of said carloads when shipped to their agents for sale, which drafts were drawn in favor of plaintiff or its order, and attached to each of said drafts was the bill of lading for each respective lot or carload of oranges so shipped as aforesaid; that all of said drafts were drawn by said Haight Fruit Company in favor of plaintiff, or order, and were payable, in some instances in thirty, others in fifteen days, after date, and in some instances on sight, and others at so many days after sight. 6. That said drafts were all substantially in the following form, save and except only as date and number of draft, number of car, name of drawee, amount, and date of maturity of said drafts, to wit: "Established 1889. Haight Fruit Company, incorporated. Packers and shippers. Oranges, raisins, dried fruits. Redlands, Cal., May 12, 1898. Thirty days after date, pay to the order of First National Bank of Redlands $500.00, with exchange. Value received and charge to account of Haight Fruit Co. By L. G. Haight. To Charles H. Parsons Fruit Co., New York. Car No. 8620. F. X. Trademark, Haight Fruit Co., California." 7. That forthwith, on the making of the said drafts respectively, the Haight Fruit Company delivered the same to plaintiff herein with the bills of lading attached, and that plaintiff, upon said delivery to it respectively as aforesaid, forthwith in every instance forwarded said drafts, with the bills of lading attached respectively, through its regular business correspondents for presentment, acceptance, and payment, to the various parties respectively upon whom said drafts respectively were drawn. 8. That forthwith upon the delivery to plaintiff of each of said drafts respectively by the said Haight Fruit Company as aforesaid, plaintiff advanced to said Haight Fruit Company, in consideration of said draft, and of the delivery of the same as aforesaid, and upon consideration of and upon the faith of said guaranty, 90 per cent of the face value of said drafts respectively so drawn and delivered as aforesaid; that all of the drafts drawn by said Haight Fruit Company as hereinbefore referred to, excepting the drafts under paragraph 11 hereof set forth, were paid by the respective parties upon whom the same were drawn, or by the Haight Fruit Company, and defendant herein has never paid 90 per cent, or any per cent, or any sum whatever, upon any draft whatever, ever drawn by said Haight Fruit Company upon any of the persons to whom it had made sales of oranges for the orange season of 1897 and 1898 as hereinbefore set forth, or upon any draft in this complaint set forth or referred to. 9. That among the drafts so drawn by said Haight Fruit Company, and delivered to plaintiff as aforesaid, and upon which plaintiff advanced to said Haight Fruit Company 90 per cent of the face value thereof as aforesaid, were the following, to wit: (1) a draft for $500, drawn February 2, 1898, on the Charles II. Parsons Fruit Company at New York, in the state of New York, payable to plaintiff, or order, fifteen days after date, and on which an advancement of 90 per cent of its face value was made by said plaintiff to said Haight Fruit Company on February 2, 1898. [Here follow similar designations of thirty-seven other drafts drawn, upon which advancements of 90 per cent of the face value thereof were made by the plaintiff to the said Haight Fruit Company.] Plaintiff alleges that, in addition to the drafts last hereinbefore set forth under this paragraph, there was drawn by the Haight Fruit Company, on various persons during the said season of 1897 and 1898, various drafts, amounting to the said drafts specified, in the aggregate the sum of $144,501.68, and to each of said drafts a bill of lading was attached, and all of said drafts were drawn for oranges, and during the said fruit season, and the plaintiff did advance to the said Haight Fruit Company upon each and all of said drafts 90 per cent thereof, making the whole amount so advanced upon said drafts and under and in pursuance of defendant's guaranty, and upon the faith and in consideration thereof, the sum of $130,051.52. And plaintiff avers that of the said sum so advanced by it, being 90 per cent of the face value of said drafts, there has been repaid to the plaintiff, either by the persons upon whom said drafts were drawn or by the Haight Fruit Company, the sum of $117,521.62, and no more, leaving a balance due to the plaintiff upon said advancements so made by it to the said Haight Fruit Company, during the time and for the purposes aforesaid, of the sum of $12,529.92, no part of which has ever been paid, but the whole thereof was on the 2d day of September, 1898, due to the plaintiff and unpaid, and has ever since remained so due and unpaid. 10. That none of the drafts in the said 9th paragraph specified, nor any part thereof, was ever paid by the drawees therein named, or by any other person, and the same now are and remain wholly owing, due, unpaid, and unsatisfied. And plaintiff further avers that all of the said drafts, and each of them, so delivered to the plaintiff and drawn in plaintiff's favor by the said Haight Fruit Company during the said fruit season of 1897 and 1898, and drawn for oranges and delivered to plaintiff with the bills of lading attached, were forthwith forwarded by the plaintiff with bill of lading attached to its regular correspondent located nearest the drawee in each respective draft named for presentment, acceptance, and collection, and in each instance of said drafts so forwarded for collection as aforesaid the plaintiff was promptly notified of the non-acceptance and non-payment of the said drafts, and forthwith upon its, plaintiff's, receipt of the said notification of such nonacceptance and non-payment of said drafts respectively, plaintiff notified said Haight Fruit Company of said non-acceptance and non-payment. And plaintiff further avers that a large portion of said drafts so drawn by the said Haight Fruit Company in favor of plaintiff, and delivered to it with the bill of lading attached. were drawn by the said Haight Fruit Company upon its own agents, employed by it in the markets of the United States, and the bills of lading made to and endorsed to the said agents to enable them to make the sales of the carloads of oranges to which they referred; that others of said bills of lading were made to persons purchasers of said fruit, and the drafts drawn on the said purchasers or upon the agents of the said Haight Fruit Company respectively, were forwarded with said bills of lading; that of the said drafts mentioned in paragraph 9, all drawn upon Charles H. Parsons Fruit Company at New York, in the state of New York, and upon N. A. Coble & Co. at Chicago, and upon A. S. Brown & Co. at Boston, were drawn upon the said Haight Fruit Company's agents or brokers in said city, the said persons named being the agents and brokers employed by the said Haight Fruit Company to find purchasers and to make sales. 11. That the aggregate amount of the principal sums mentioned in said drafts so drawn by said Haight Fruit Company to the order of plaintiff as aforesaid, and unpaid, being the drafts heretofore under said paragraph 9 respectively set forth and enumerated, is the sum of $14,937.40, of which sum 90 per cent is $13,443.66; that of said $13,443.66 the sum of $913.74, and no more, has been paid to plaintiff by said Haight Fruit Company, and there now is and remains owing and unpaid to plaintiff upon the said 90 per cent of the principal sums of said drafts the sum of $12,529.92; that on the 2d day of September, 1898, and on various other and subsequent days and times, plaintiff has demanded the payment to it, plaintiff, of the said sum of $12,529.92, but defendant has at all times neglected and refused, and now neglects and refuses, to pay plaintiff the said sum of $12,529.92, or any part thereof, and said sum of $12,529.92, together with interest thereon from the 2d day of September, 1898, the date of plaintiff's said demand upon defendant as aforesaid, now is and remains wholly due, owing, and unpaid by defendant to plaintiff. Wherefore, plaintiff prays judgment against defendant for the sum of $12,529.92, together with interest thereon at the rate of seven per cent per annum, from the 2d day of September, 1898, and for its costs herein. [Verification.] J. S. Chapman, Attorneys for plaintiff. [In the foregoing action judgment was rendered for defendant and affirmed on appeal. Upon the first appeal in this case the court held that the wording of the guaranty was not so plain, unambiguous, and certain as to have justified the court in refusing evidence explanatory of it: First National Bank v. Bowers, 141 Cal. 253, 74 Pac. 856.] FORM No. 789-Denial of endorsement. [Title of court and cause.] The defendant answering the complaint [or petition] of the plaintiff, denies that he ever at any time endorsed the promissory note [or bill] mentioned in said complaint [or petition]. FORM No. 790-Denial of acceptance. [Title of court and cause.] The defendant answering the complaint [or petition] of the plaintiff herein, denies that he made the promissory note [or accepted the bill] mentioned in the complaint [or petition], or any note [or bill], made [or drawn] in favor of the payee [or drawee] named. FORM No. 791-Denial of acceptance, presentment, and protest. [Title of court and cause.] The defendant answering the complaint [or petition] of the plaintiff, denies: That the bill of exchange mentioned therein was ever presented for acceptance or accepted as alleged, or at all, or that it was ever presented for payment, or protested for non-payment, as alleged in said complaint [or petition], or otherwise, or at all. FORM No. 792-Denial of presentment. [Title of court and cause.] The defendant answering the complaint [or petition] of the plaintiff, denies: That the promissory note [or bill of exchange] mentioned therein was ever presented to C. D. for payment [or for acceptance] as alleged, or at all. FORM No. 793—Denying excuse for non-presentment. [Title of court and cause.] The defendant answering the plaintiff's complaint [or petition], denies : That due or reasonable search was made when the said bill of exchange [or promissory note] became due and payable, to discover the person of the said , or elsewhere, or at all, in order that the said bill might be presented to the said ment. FORM No. 794-Denial of notice. [Title of court and cause.] at for pay The defendant denies that notice of the dishonor of the said promissory note [or bill], was given to the defendant, as alleged in the complaint herein, or otherwise. FORM No. 795-Counterclaim in action upon promissory note. (In First National Bank v. Bews, 2 Idaho 1175; 31 Pac. 816.) [Title of court and cause.] Defendant O. R. Young, by leave of the court first had and obtained, files his amended answer herein, and [for defense and counterclaim] 1 says: 1 1. That, at the time of the execution of the note sued upon in this action defendants therein also executed a like note for the same amount to the firm of Willman & Walker, then of Hailey, Idaho, and secured the payment of both said notes by then and there executing 1 The counterclaim in this form was held proper, and that therefore it was error to refuse to permit defendant to prove the facts alleged therein. The court stated that as it arose out of the same transaction, and was connected with the subject of the action, "it is a cause of action arising upon a contract, and existed at the commencement of the action, and therefore must be set up, or it is barred': First National Bank of Hailey v. Bews, 2 Idaho 1175, 31 Pac. 816, 818. See 4185, Rev. Laws Idaho. |