Miller v. Henning

California Court of Appeal Jul 24, 1933 No. Docket No. 7864.Published

Before: Craig

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Holding. The court held that the trial court properly admitted evidence of a written assignment and letters of guarantee despite objections based on section 447 of the Code of Civil Procedure, and that the exclusion of certain testimony regarding consideration was not erroneous.

Issues

Whether a written assignment must be pleaded under section 447 of the Code of Civil Procedure when the fact of assignment is already pleaded.
Whether letters of guarantee offered to corroborate pleaded consideration constitute written instruments that must be pleaded under section 447.
Whether the exclusion of testimony regarding the purpose of a promissory note and conclusions as to consideration constitutes reversible error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“since it is not contended that the fact of assignment was not pleaded, nor that the offered document was incompetent evidence thereof, such objection was untenable in the instant case.”

“they were not written instruments within the domain of the quoted section, but constituted evidence in connection with the documentary basis of the action, which was pleaded in haec verba.”

“The evidence tendered could have constituted no more than conclusions of the witness in denial of his prior testimony, and the objections were properly sustained.”

CRAIG, J.

An action having for its basis a promissory note of the defendant, payable to the plaintiff’s assignor, resulted in a judgment in favor of the plaintiff, from which said defendant appealed.

Following proof of the note and indebtedness, which were not denied, an instrument was offered in support of the allegation that “prior to the commencement of this action the claim sued upon was duly and regularly assigned to the plaintiff herein”. Objections were interposed by the defendant that the written assignment had not been pleaded as required by section 447 of the Code of Civil Procedure, which provides that “if the plaintiff relies upon a written instrument, in whole or in part, that fact shall be pleaded”. It is argued that to permit the introduction in evidence of a written instrument without allegation according to said section would constitute reversible error. However, since it is not contended that

the fact of assignment

was not pleaded, nor that the offered document was incompetent evidence thereof, such objection was untenable in the instant case.

(Meyer

Foster,

147 Cal. 166 [81 Pac. 402].)

Letters of the defendant to the payee amounting to admissions and a guarantee of payment “to secure the indebtedness in a manner satisfactory” to the latter were objected to upon the same ground, which objections were

[412]

overruled. We are not aided by a brief on behalf of the respondent, and for obvious reasons are unable to consider appropriate argument or citation of authority which the appellant’s attack upon the judgment demands.

(Mosher

Johnson,

51 Cal. App. 114 [196 Pac. 84].) The defendant having affirmatively raised by his answer the question of consideration, it appears that said letters were offered in corroboration of the plaintiff’s evidence in support of his pleaded consideration. This being true, they were not written instruments within the domain of the quoted section, but constituted evidence in connection with the documentary basis of the action, which was pleaded

Miller v. Henning

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CRAIG, J.

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