Hualde Ranch Co. v. Beebe

California Court of Appeal Jan 15, 1935 No. Civ. 1464Published

Before: Barnard

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Holding. The court held that a nonsuit was improperly granted because the plaintiff had established a prima facie case on a promissory note, and the trial court erroneously required the plaintiff to prove allegations that were mere surplusage.

Issues

Whether a plaintiff in an action on a promissory note must prove allegations in the complaint that are not necessary to the cause of action.
Whether a nonsuit may be granted based on a failure to prove immaterial allegations when a prima facie case has been established.

Disposition. reversed

Quotations verified verbatim against the opinion

“The burden of pleading and proving the lack of a consideration sufficient to support a written instrument is upon the party seeking to avoid it upon that ground.”

“In the state of the record at the time this motion for a nonsuit was granted the appellant’s prima facie case was complete, and the only failure of proof on its part was as to a matter which was then immaterial.”

BARNARD, P. J.

This is an action on a promissory note to recover judgment for the deficiency remaining after a sale of certain real property under a trust deed given to secure the note. The complaint set forth a copy of the note and all necessary averments in relation thereto and, in apparent anticipation of certain defenses, alleged that the note and the trust deed securing the same were given in connection with -a transaction whereby the plaintiff sold the real property in question to the defendants under a contract of sale followed by the closing of an escrow and the deeding of the property. Among other things, the complaint alleged that the plaintiff had fully complied with all of the terms of the contract which initiated the sale referred to. The answer admitted the execution of the note but as a defense thereto alleged a partial failure of consideration.

At the trial, after introducing the note and making out a

prima facie

case with respect thereto, the plaintiff introduced certain evidence in an attempt to show that there was no failure of consideration and that it had fully performed all of the terms of the original contract which were by it to be performed. An objection to the introduction into evidence of the deed by which the plaintiff had conveyed the property in question to the defendants was sustained on the ground that there was a variance between the deed actually given and the deed called for by the original contract. At the close of the plaintiff’s case a motion for a nonsuit was made on the grounds that the evidence disclosed a partial failure of consideration, that it failed to show that the plaintiff had fully complied with all of the requirements of the original contract, and that there was nothing before the court to show that the land had been conveyed by the plaintiff to the defendants. This motion was granted and judgment of dismissal was entered, from which this appeal was taken.

It is well settled that in an action upon a negotiable instrument it is not necessary to allege or prove a consideration and that allegations in the complaint in relation thereto

[594]

are surplusage.

(Kenison

Hualde Ranch Co. v. Beebe

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BARNARD, P. J.

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