Rivera v. Cappa

This is an appeal upon the judgment-roll alone from a judgment rendered in favor of the defendant in an action upon a promissory note.

The defendant admitted the execution of the note, but pleaded in his answer that "there was no consideration of any kind or nature therefor, . . ." and that at the time of signing said note the defendant was "laboring under great mental excitement, and that the payee therein threatened to blackmail the defendant if he did not sign the same, and that he signed the same through fear of blackmail and by reason of said fear and not otherwise."

The case was tried and determined upon the issues purporting to have been raised by the pleadings of the respective parties, and upon the issues thus raised the trial court found as a fact that the payee of the note "did not at the time of the signing of said note or at any other time part with anything of value for the execution thereof, and that the said note or contract is and was without consideration of any kind or nature."

The defense of want of consideration for the execution of a promissory note or other written instrument is new matter, which must be specially pleaded, and it seems to be the rule in this state that a general averment that the note or contract *Page 498 sued on was executed without any consideration whatever is but an allegation of a conclusion of law. (Happe v. Stout, 2 Cal. 460; Gushee v. Leavitt, 5 Cal. 160, [63 Am. Dec. 116];Winters v. Rush, 34 Cal. 136. See, also, 9 Cyc. 738.) But however that may be, it will be noted that the answer of the defendant in the present case averred, in addition to the general allegation of want of consideration, that the note in suit was executed and delivered to the payee as the result of duress. That was an allegation of fact which, when considered in connection with the general averment of want of consideration, and in the absence of a special demurrer, sufficiently pleaded the defense relied upon. (Shain v. Belvin,79 Cal. 262, [21 P. 747].) But even if it be conceded that the defendant's answer rested the defense of want of consideration upon the allegation of a conclusion of law, nevertheless the objection made after trial of the case upon the merits will not be considered upon an appeal supported only by a record which does not show that such objection was interposed by demurrer or otherwise in the court below. (King v. Davis, 34 Cal. 101, 106; Illinois etc. Bank v. Pacific Ry.Co., 115 Cal. 285, [47 P. 60]; Murdock v. Clarke,90 Cal. 427, [27 P. 275]; Sukeforth v. Lord, 87 Cal. 399, [25 P. 497].) In the absence of a record showing the evidence introduced upon the trial, the presumption prevails that there was sufficient evidence to support the finding of the trial court upon the issue of want of consideration; that finding in turn supports the judgment, and therefore the failure of the court to find upon other issues purporting to have been raised by the answer is of no consequence, and need not be considered here.