Bartlett Estate Co. v. Fraser

California Court of Appeal Sep 27, 1909 No. Civ. No. 665.Published

Before: Allen

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Holding. The court held that the trial court properly struck evasive denials from the defendant's answer and that a joint obligor cannot assert a counterclaim based on a demand in favor of only one obligor. Furthermore, the court held that a bank is estopped from denying its president's authority to assign a note when it has accepted and retained the proceeds from that transaction.

Issues

Whether the trial court erred in striking portions of the defendant's answer as evasive and insufficient.
Whether a joint obligor may assert a counterclaim based on a demand in favor of only one obligor.
Whether the evidence was sufficient to support the finding that the note was validly assigned to the plaintiff.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The rules of pleading under our system are intended to prevent evasion, and to require a denial of every specific averment in a sworn complaint, in substance and in spirit, and not merely a denial of its literal truth.”

“The obligation being by its express terms joint, section 1430, Civil Code, has no application; and being joint no counterclaim can be made available which consists of a demand in favor of one of the obligors.”

“The bank being estopped to deny the authority of the president in making the transfer, appellant is fully protected from further litigation or liability in connection with any claim of the bank on the paper”

Synopsis

APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. E. S. Torrance,- Judge.

The facts are stated in the opinion of the court.

ALLEN, P. J.

Appeal by defendant Fraser from a judgment and from an order denying a new trial.

Plaintiff filed a verified complaint alleging its due organization and existence as a California corporation, setting out

[375]

in kaec verba

a non-negotiable promissory note, joint in form, payable to the People’s State Bank, and signed by defendants Fraser and Wyneken, alleging that no part had been paid except interest for one year, and the assignment and transfer of the note to plaintiff. Defendant Wyneken made default. Fraser answered, averring that he had not sufficient information and belief upon the subject to enable him to answer, and upon that ground denied that plaintiff is now, and at all times mentioned in the complaint has been, a corporation, etc. Further, for want of information and belief, denied that no part of the note had been paid except the one year’s interest; and, for want of information and belief, denied that no part of the note remained unpaid. By way of counterclaim, set up an account against plaintiff theretofore assigned to him, which he alleged remained unpaid, and for the amount of which he asked judgment.

The court, on motion, struck from the amended answer of defendant Fraser the portions thereof attempting to deny the corporate existence of plaintiff, and those paragraphs of the answer denying nonpayment, as well as the allegations with reference to the counterclaim, leaving in the answer only as an issue the question of the assignment and transfer of the obligation on which suit was brought.

Appellant insists that the court erred in sustaining the motion to strike out. We see no error upon the part of the court in this regard. “The rules of pleading under our system are intended to prevent evasion, and to require a denial of every specific averment in a sworn complaint, in substance and in spirit, and not merely a denial of its literal truth.”

(Doll

Good,

38 Cal. 290.) The allegation of the answer with relation to the corporate existence of plaintiff, being in form conjunctive, fell short of denying each specific averment. The denials as to nonpayment upon information and belief are within the rule laid down in

Bartlett Estate Co. v. Fraser

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Synopsis

ALLEN, P. J.

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