Poe v. Francis

California Court of Appeal May 31, 1933 No. Docket No. 7634.Published

Before: Parker

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Holding. The court held that the defendant's answer failed to raise any triable issues of fact because the attempted denials were evasive or legally insufficient, and the affirmative defenses failed to allege facts constituting a valid defense to the promissory notes.

Issues

Whether the defendant's answer sufficiently denied the assignment of the promissory notes to the plaintiff.
Whether the defendant's allegations regarding failure of consideration and fraud were sufficient to survive a motion for judgment on the pleadings.

Disposition. affirmed

Quotations verified verbatim against the opinion

“an attempted denial in these words, “defendant is informed and believes and therefore denies”, means nothing and cannot raise an issue of any sort.”

“The allegation as to failure of consideration presents at best merely a conclusion of law.”

“Taking the answer in its broadest sense, and disregarding all recognized rules of good pleading, it can be seen that even if the allegations thereof stood uncontradicted no valid defense is presented.”

PARKER, J.,

pro

tem.

This is an appeal from a judgment on the pleadings, which judgment was so rendered in favor of plaintiff after answer filed.

The complaint is in three counts, each founded upon a promissory note alleged to be unpaid. The first count sets up the execution and delivery of a certain promissory note payable to one Huttig, the assignment, transfer and indorsement thereof to plaintiff before maturity and for value, partial payment and the nonpayment of balance. The second count contains the same allegations with reference to another promissory note. The third count sets up a third note and contains the same allegations with reference to execution, delivery and nonpayment. The allegation of transfer and assignment to plaintiff makes no reference to time of transfer, whether upon or after maturity, or whether any consideration attended the assignment and transfer to

[333]

plaintiff. We shall consider the answer with reference to each count.

Count One: Defendant admits the execution and delivery of the note as alleged. The answer then proceeds: Defendant is informed and believes and on that ground denies the assignment to plaintiff and alleges that the payee of the note did not, prior to maturity, assign the note for a valuable consideration, and that the payee did transfer subsequent to maturity without consideration, and that the original payee was, at the time the complaint was filed, the owner of the note. Further it is alleged that the original payee failed and refused and neglected to deliver to defendant the consideration for which the said note was executed and delivered, and that the consideration for said note has wholly failed. The answer admits partial payment and denies that anjdhing is due or unpaid thereon.

There are two attempted denials. Under the authority of

Cuneo

Lawson,

203 Cal. 190 [263 Pac. 530], plaintiff cannot maintain the suit without proof of the assignment, and if issue is properly joined on that point a judgment on the pleadings would be improper. However, an attempted denial in these words, “defendant is informed and believes and therefore denies”, means nothing and cannot raise an issue of any sort. Further, a denial that the payee did assign for a valuable consideration raises no issue as to the assignment. Likewise an allegation that the payee did not transfer or assign the note prior to maturity and for a valuable consideration in itself sets forth no defense.

Poe v. Francis

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PARKER, J.,

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