Lever v. Garoogian

Opinion

STEPHENS, J.

Plaintiff (C. R. Lever) brought an action seeking recovery on a promissory note of $7,500. The case was tried by the court and judgment was rendered in favor of defendant (Mike Garoogian). Plaintiff appeals.

The superior court found the following facts to be true: Lever and Garoogian entered into a joint venture to purchase jewelry for resale. Lever was to contribute $7,500, and Garoogian, $7,000. On or about November 24, 1969, Lever delivered $7,500 to Garoogian. At the time

[39]

the money was handed over, Garoogian’s signature was obtained on a note, the note, however, being represented to Garoogian as a receipt for the money given to him by Lever. Garoogian, acting as purchaser for the venture, turned over his as well as Lever’s contribution to the proposed sellers, who absconded with the funds.

The sole issue on appeal is whether the evidence of fraud and misrepresentation adduced at trial was outside the scope of the pleadings and erroneously admitted by the trial judge over the objections raised by plaintiff.

Garoogian, who represented himself at trial without the assistance of counsel, pled a general denial to plaintiff’s complaint on the note. No affirmative defenses were pled. The rule is well settled that evir dence “cannot be used to establish an issue that the parties have not made in their pleadings.”

(Trafton

v.

Youngblood,

69 Cal.2d 17, 32 [69 Cal.Rptr. 568, 442 P.2d 648]; see also Witkin, Cal.Evidence (2d ed.) § 301.) What constitutes new matter which must be pled as an affirmative defénse in order to be considered at trial was set forth in the early case of

Goddard

v.

Fulton,

21 Cal. 430, 436, where the court stated: “If the answer, either directly or by necessary implication, admits the truth of all the essential allegations of the complaint which show a cause of action, but sets forth facts from which it results that, notwithstanding the truth of the allegations of the complaint, no cause of action existed in the plaintiff at the time the action was brought, those facts are new matter. But if those facts only show that some essential allegation of the complaint is not true, then such facts are not new matter, but only a traverse.”