Muller v. Barnes

FOX, J.

As part of the consideration for the purchase of 14 horses from Victor Cox, defendant signed a document dated September 16, 1950, reading in part as follows:

“Pancho Barnes promises and' agrees to Pay to Vic Cox the sum of Three Thousand and Two Hundred and No cents ($3200.00) within one year from the date of this agreement. However Pancho Barnes agrees that all monies from the sale of any of the above stock shall be paid to Vic Cox as soon as is possiable [sic] until the full amount of $3200.00 shall have been paid. The unpaid balance shall bare [sic] an interest of six per cent (6%) per annum.”

In September, 1953, Cox assigned this instrument to plaintiffs. Defendant having failed to make other than a $10 payment on the obligation, plaintiffs filed suit. Defendant answered by way of denials. She also filed a cross-complaint charging Cox with fraud and misrepresentation and that he substituted another animal for one he agreed to deliver. The court found in favor of plaintiffs on the' issues raised by the complaint and answer. On the cross-complaint, the court found Cox had delivered an animal other than the one he had agreed to deliver and cross-complainant had been damaged thereby in the sum of $250. This amount was deducted from the unpaid balance of $3,190, and judgment accordingly entered for plaintiffs for $2,940. The court, however, refused to allow interest at 6 per cent as provided in the writing.

Defendant appeals from the judgment. Plaintiffs appeal from that portion of the judgment which disallows interest.

Defendant’s Appeal.

When the case came on for trial, defendant asked leave to file an amended and supplemental answer. While the proposed pleading is not before us, defendant’s brief indicates that she sought to raise the affirmative defenses of ■failure of consideration and rescission on the ground of fraud. At a continued hearing on March 30, 1955 (the trial started on May.7, 1954), “defendant requested leave to amend her answer to conform to proof.” While the nature of the proposed amendment is not further disclosed, apparently defendant was still desirous of raising these defenses. The request was denied.

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