Professor Byron Grim
June 20, 2011
Swan v. Talbot, 152 Cal. 142 (Cal. 1907)
George Swan, plaintiff, sold James R. Talbot, defendant, a portion of personal property. Swan was inebriated at the time the deal was prepared. The portion of the property sold to Talbot was valued at $21,949.86. Talbot paid Swan $10,604.32, this included $200 in coin that was paid to Swan at the time of the execution of the bill of sale. Swan sued Talbot to recover his personal property or to be remunerated for the difference. The trial court ordered Talbot to pay $11,345.54. Talbot appealed the judgment and the denial of his motion for a new trial. The appeals court affirmed the trial court order and judgment. A note in the amount of $2,591.96, interest included, was executed by Anderson. Talbot used this amount as collateral security for his indebtedness to the bank. This payment was a debt assumed by Talbot. A petition for rehearing was filed and granted.
Did the defendant owe the plaintiff more money, therefore entitling the plaintiff to the total amount of funds that should be paid for the property?
Was the trial court judge biased against the defendant and prejudiced in his order against the plaintiff, therefore requiring a new judge to sit for trial?
The court found for a rescission of the instrument, but also found that it was impracticable to decree a restoration and return of the property, it proceeded thereupon to state and settle an account between the parties. Even though such relief was not prayed for in the complaint, a personal monetary judgment was awarded against the defendant for the variation.
It is the duty of a trial judge to hear and determine a motion to call in another judge to try a case if there is the presence of bias against the defendant and his attorneys. While it is his duty to grant the motion should bias or other disqualification be shown, it is equally his duty to deny the motion and to sit in the case himself.
If disqualification or bias is shown it is the duty of the judge to remove himself from the case. On the other hand, it is equally his duty to deny the motion and to sit in the case himself if there is no bias or evidence. A further discomfiture under the circumstances arises from the fact that the judge himself is made the trier of the question touching his own partiality or other disqualification. “But the law has seen fit to impose this painful duty upon him, and he may not shirk its performance.” (Higgins v. City of San Diego, 126 Cal. 304, [58 Pac. 700, 59 Pac. 209]; People v. Findly, 132 Cal.305, [64 Pac. 472]; Lamberson v. Superior Court, 150 Cal. 458, [91 Pac. 100]).
Instead of cancelling the transaction and returning the personal property, the courts decided that compensation would be the best way to settle the dispute between the two parties. The court took Judge Story, (Eq.Jur., sec. 2313), “Equity therefore will not assist a man to avoid a contract which he has entered into when drunk, merely because when in his sober senses he may wish he had not entered into it.” Due to the fact that there is a swift upturn, the court looks to unbiased authority. Phelan v. Gardner, 43 Cal. 306 and Moore v. Moore, 56 Cal. 92 are the two cases that the courts took pattern of. In Phelan v. Gardner, an individual may use intoxication as the reason for being incapable of contracting intelligently if they can show that they were intoxicated several hours after entering the agreement. In Moore v. Moore, whenever there is a weakness of mind in a person executing a contract and the consideration given for the property is grossly insufficient, imposition or undue influence will be contingent and the contract will be set aside by equity. Therefore, the judge was justified in refusing the defendant’s demand for a trial by jury....