Silva v. Gordo

PLUMMER, J.

Action by plaintiff to recover the sum of one thousand dollars for and on account of a promissory note made, executed, and delivered by the defendants to the plaintiff herein. After admitting the execution and delivery of the note to plaintiff, as alleged in plaintiff’s complaint, the defendants set up certain special defenses. The court, upon motion of the plaintiff, struck out the special defenses set up in the answer of the defendants. Plaintiff had judgment and defendants appeal, seeking reversal of the judgment on account of the order of the trial court striking out the special defenses contained in their answer.

The plaintiff alleges that on or about the twentieth day of October, 1921, at Mariposa, county of Mariposa, state of California, the defendants made, executed, and delivered their promissory note to the plaintiff in words and figures following, to wit:

“Mariposa, California, October 20, 1921.

“One year after date, without grace, we jointly and severally promise to pay John S. Silva, at Mariposa, California, the sum of One Thousand Dollars ($1,000.00), without interest.

“J. W. Gordo.

“Charles Holden.”

This is followed by the formal allegations as to the plaintiff still being the owner and holder of said note and also that no part thereof had been paid.

The defendants’ answer, admitting the execution and delivery of the note, denied that the plaintiff was the lawful owner or holder thereof and also denied that no part of said promissory note had been paid.

A demurrer was sustained to the answer filed by the defendants and a second answer was filed containing in substance the same matters as hereinabove stated, and then for a further and separate defense the defendants allege that on or about the twentieth day of October, 1921,

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the plaintiff was the owner of thirty-one head of cattle then in his possession, and that at said time and place plaintiff and defendants entered into a verbal agreement whereby plaintiff was to deliver said cattle to the defendants and the defendants agreed that they would feed and care for said cattle during the winter of 1921 and 1922; and that in the spring of 1922 plaintiff should have ten head of said cattle to be selected by him, and that the defendants should retain the balance as compensation for feed and services furnished by them; and that in order to secure the faithful performance of said agreement of said defendants and the return to plaintiff of the said ten head of cattle in the spring of 1922, plaintiff and defendants agreed that defendants should give to plaintiff their promissory note in the sum of one thousand dollars, payable one year after date. Defendants made, executed, and delivered to plaintiff their certain promissory note as set forth in plaintiff’s complaint; that said note was given by defendants and received by plaintiff as security only for the faithful performance of said agreement; that plaintiff agreed that upon the return of said ten head of cattle in the spring of 1922 he would return said promissory note to defendants; that defendants performed all of said agreement by them to be kept and performed, did care for, and feed all of said stock during the said winter, and did on or about the said twenty-eighth day of April, 1922, notify plaintiff to select the ten head of cattle theretofore delivered to defendants and did demand of plaintiff that he return to them the said promissory note; that plaintiff has refused and neglected to select the said ten head of cattle and refused and neglected to return to defendants their certain promissory note; that defendants have at all times been ready, willing, and able to carry out the terms of said agreement, but the plaintiff has refused to accept, select, and choose ten head of cattle and to surrender said promissory note. This portion of the defendants’ answer was stricken out upon motion as hereinbefore stated. Upon the trial plaintiff made proof of the execution and delivery of the note and nonpayment, etc., and the defendants, introducing no evidence, ■ the court, findings being waived, entered judgment for the plaintiff in the sum of one thousand dollars.