North v. Evans

California Court of Appeal Oct 2, 1931 No. Docket No. 875.Published

Before: Allison

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Holding. The court held that a judgment on the pleadings was improper because the defendant's answer sufficiently raised material issues regarding conditional delivery, despite other portions of the answer containing defective denials.

Issues

Whether the defendant's answer sufficiently alleged a conditional delivery of the promissory notes to preclude judgment on the pleadings.
Whether the defendant's denials based on lack of knowledge or information, and the use of a negative pregnant, were sufficient to tender an issue.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“If the answer puts in issue a material allegation of the complaint or sets up affirmative matter which constitutes a defense to the cause of action therein set forth, a judgment on the pleadings cannot be given in favor of the plaintiff.”

“Under the state of the pleadings the notes are subject to any defense against the holder, which could have been interposed against the payee.”

ALLISON, J.,

pro

tem.

In this action judgment in favor of the plaintiff was granted on the pleadings from which the defendant appeals upon a bill of exceptions.

The complaint was filed on the third day of October, 1930, and declares on two promissory notes. One of said notes is dated the thirteenth day of December, 1927, payable to E. D. Wilkinson, for the sum of $700, due 180 days after date thereof. The other note, for $787.50, is dated March 28, 1928, due on or before September 1st after date. It is alleged that no part of the principal or interest on either of said notes has been paid and “That prior to the commencement of this action for a valuable consideration the said note was sold and delivered to the plaintiff herein and that the said plaintiff is now the owner and holder thereof. ’ ’ The complaint is in two counts and the allegation above quoted is identical in each count.

The answer admits the execution of the notes in question and that no part of the principal or interest has been paid, but denies, that said notes were ever delivered except as in the special defenses therein set out. The answer in each count sets out certain transactions between defendant and E. D. Wilkinson, the payee named in said notes, -out of which grew an indebtedness from the defendant to the said Wilkinson in the. respective amounts named in the notes; admits the execution and delivery of said notes to Wilkinson and further alleges, in each of said special defenses that at the time of making said notes it was agreed between them that the making, execution and delivery of the notes should be ineffective for any purpose whatever and should constitute no binding agreement between the parties thereto, until the

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happening of a certain condition named in said special defense and that upon the happening of said condition the notes should immediately take effect and be and become binding agreements between the parties thereto. It is alleged that the condition upon which the notes were delivered has not occurred. The answer also denies that the notes are now due and payable.

Respondent insists that the special defenses would not, if true, make the delivery of the notes conditional; that they are to be regarded merely as matters of evidence, and as such would be inadmissible as an attempt to vary the terms of the written contract. It was held in the case of

North v. Evans

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ALLISON, J.,

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