Action upon a promissory note for the principal sum of eight hundred and thirty-two dollars, alleged to have been made and executed by James Mack to plaintiff on December 28, 1894. It is also alleged in the complaint "that on or about the twentieth day of June, 1895, the defendant Davis wrote his name upon the back of said note to give it credit, and delivered the same to plaintiff." Judgment is sought against defendant only, Mack not being a party to the suit. Plaintiff appeals from a judgment entered against him and from an order denying a new trial.
The defendant admits that he placed his signature upon the back of the note on the date stated in the complaint, but alleges that his doing so was the result of a mistake; that he did not intend to indorse the note in question, but did intend to indorse a four hundred dollar note given on that date by plaintiff to the First National Bank of Santa Paula; that he had never agreed to indorse the note in suit, but did agree to help to obtain four hundred dollars from said bank to be furnished to said Mack that he might go on the racing circuit of California with a certain racehorse jointly owned by plaintiff, defendant, and said Mack; that in pursuance of this agreement the said four hundred dollars was obtained from said bank, and defendant wrote his name, thinking that he was indorsing the said four hundred dollar note given to said bank for said last-mentioned sum; that he inadvertently wrote his name on the wrong note; that said note for four hundred dollars was fully paid and satisfied by the plaintiff, defendant, and said Mack, *Page 637 before the commencement of this action; and that the indorsement by defendant of the note in suit was without consideration therefor.
The defendant pleaded the foregoing facts in his answer in defense to the action. He also set up the same facts in a cross-complaint and prayed that the court order the note in suit to be taken into custody of the court, and his name be canceled therefrom, and that it be declared that cross-complainant is not liable upon said note, and for general relief. Plaintiff demurred to the cross-complaint for want of facts to constitute a cause of cross-complaint in said action. This demurrer was overruled, and plaintiff answered said cross-complaint. A trial was thereafter had before the court, a jury having been specially waived. The defendant testified to the facts substantially as hereinbefore set out; the findings were to the same effect, and the judgment was that plaintiff take nothing, that defendant's name be canceled from the note, that plaintiff be forever estopped from bringing any action against defendant on account of said note, and that defendant recover his costs.
1. There was no error prejudicial to appellant in overruling his demurrer to the cross-complaint. The facts stated in the cross-complaint were also pleaded in the answer as a defense; and, found to be true, they constituted a good defense, and it was on account of those facts that it was decreed that plaintiff take nothing in the action. On the complaint and answer alone the court could determine, as it did, from the evidence that the signature of defendant was not binding upon him: 1. Because it was made by mistake; and 2. Because it was given without consideration. The judgment that plaintiff take nothing estopped him from maintaining another action against defendant on this cause of action. The signature on the back of the note could be of no further value to plaintiff, and it could do him no harm to have it canceled. The error, if any was made in overruling the demurrer to the cross-complaint, was therefore without prejudice to any substantial right of appellant.
2. The objection to the question asked of defendant as to how he happened to put his signature on the back of the note, based on the ground "that there is no averment of a mistake in the cross-complaint," was properly overruled. *Page 638 There was such an averment in the cross-complaint and in the answer also, and the evidence sought was relevant under both. It was not necessary to allege that the mistake relied on was not the result of defendant's negligence.
3. Against the objection and exception of appellant the defendant as a witness was allowed to answer, and did answer, in the negative the following questions:
"Did any consideration ever move to you from either Hardison or Mack for the indorsing of this eight hundred and thirty-two dollar note?"
"Was there any consideration at the time you indorsed this note moved from Hardison to Mack for your indorsement?"
The rulings in allowing these questions to be answered were not erroneous. The witness had already testified fully as to the circumstances under which he wrote his name on the back of the note in suit and as to what induced him to do so; this testimony showed that there was no consideration for his indorsing the said note; and, being in a position to know the ultimate fact, and appellant having the opportunity to cross-examine him, it was not improper for him to testify directly that there was no consideration. (Kreuzberger v. Wingfield, 96 Cal. 251.)
The other objections to testimony are not of sufficient importance to require special notice; it is sufficient to say that there was no error prejudicial to appellant in overruling them.
4. Appellant contends that the findings favorable to the defense of mistake are without support in the evidence. Defendant testified to facts which if believed established this defense beyond any question. And in support of the findings we must assume that defendant told the truth. This court has many times declared that it would not interfere with the decision of the trial court, as to questions of fact, where there was any substantial evidence supporting it.
This rule is not affected by the degree of evidence required under the law. It is left to the trial court to determine whether the evidence establishes the fact, just as it is left to that court to say where the preponderance of evidence is in other cases. (Ward v. Waterman, 85 Cal. 488.) Even in criminal cases, where the rule of proof, beyond a reasonable doubt, is firmly settled, the decision of the tribunal *Page 639 before which the witnesses appear, as to questions of fact, is rarely interfered with by the appellate court.
There is no evidence that defendant's mistake was caused by the neglect of a legal duty on his part, and in the absence of any evidence on the subject the presumption is against any neglect of legal duty. There is, therefore, nothing in appellant's contention based on the alleged failure of plaintiff to make a negative showing on this subject. Plaintiff's mistake arose out of "an unconscious ignorance" of a present fact. (Civ. Code, sec.1577) The case of Ruhl v. Mott, 120 Cal. 668, does not contain anything applicable to the case in hand.
The facts contended for by the respondent and found by the court to be true established the nonexistence of the alleged contract upon which the action was based. In other words, it was shown that there was no meeting of minds in the matter and that no such contract ever existed. There was, therefore, no contract to rescind; and the rule of reasonable diligence, etc., laid down in the code as applicable to cases of rescission, finds no application here. The other points urged by appellant are without merit.
The judgment and order denying a new trial are affirmed.