Curran v. Wilson

JAMES, J.

Appeal from a judgment entered against the defendant. The action was upon a promissory note the text of which is set out in the complaint as follows:

“$500.00.

Pomona, Cal., March 1st, 1915.

“Sixty days after date, (without grace) I promise to pay to the order of Silent Engine Co. five hundred dollars for value received with interest at 7 per cent per' annum from Mch. 1st. 1915, until paid both principal and interest payable only in United States gold coin.

“Payable at First National Bank, Pomona, Cal.

“Mbs. Lydia A. Wilson.

“No.-. Due-.

“ (Indorsements on back.)' Silent Engine Co. Bradford Stein, Gen. Mgr. T. Carter Doremus.”

It was further alleged in the complaint that before maturity, for a valuable consideration, the note was indorsed and delivered to Doremus, who thereafter, before maturity and for a valuable consideration, indorsed the same to the National Surety Company. It was then alleged “that thereafter said note was transferred and delivered by said National Surety Company to the plaintiff herein.” A sufficient allegation of nonpayment appears in the complaint. In the answer the defendant made denial of the allegations as to the indorsements made on the note and the transfer thereof, in the following form: “Alleges that she has no information or

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belief sufficient to answer the allegations of the second paragraph thereof and for want of such information and belief, or either, and upon that ground denies that before maturity or for a valuable consideration, or at all, said note was indorsed, or at all delivered to T. Carter Doremus, or that thereafter or before maturity, or for a valuable consideration, or at all, said note was indorsed or delivered by said T. Carter Doremus to the National Surety Company, or that thereafter or at all said note was. transferred or delivered by said National Surety Company to the plaintiff herein.” A special defense was set up by the defendant showing fraud in the obtaining of the note by the payee, and praying that judgment be denied to the plaintiff. Plaintiff offered the note, with the indorsements made thereon, in evidence, to which objection was made and overruled. Without calling a witness, a written document was then offered and received by the court, which purported to have been executed by the corporation payee of the note by its president and secretary, with corporate seal attached. Objection was made to the reception of this document and this objection was also overruled. The plaintiff thereupon offered in evidence the deposition of Doremus, wherein Doremus gave testimony showing that he sold to the payee of the note, fifteen days after its date, an automobile, and took as part payment the note in suit. He further testified that he assigned the note later to the National Surety Company in payment of a debt owing to the corporation by his mother. Objection was made to the introduction of the deposition and to particular parts thereof. The general objection was first made that the deposition was not admissible for the reason that it was not shown that the attendance of Doremus as a witness at the trial could not be secured. This objection was overruled. Plaintiff having rested his ease, defendant was called to the witness-stand, and counsel sought to elicit from her the details of the transaction in which the note was given as sustaining the special defense made by the answer. This testimony was objected to on the ground that it had been shown that Doremus had obtained the note before maturity for value and without knowledge of the transaction involved in the making of the note. The objection was sustained. The court thereupon ordered judgment in favor of the plaintiff.