Thompson v. Thompson

COOPER, C.

This is an action to recover upon a promissory note executed by defendant’s intestate in his lifetime. Findings were filed, upon which judgment was entered for defendant-. This appeal is from the judgment and order denying plaintiff’s motion for a new trial.

The court found, in effect, that the promissory note sued upon was not agreed to nor understood by the parties to be a promissory note, and that it was executed without consideration. It is contended that this finding is not supported by, but contrary to, the evidence, and with this contention we agree. The plaintiff proved the signature of deceased to the note, introduced it in evidence, proved the due presentation thereof as a claim .against the estate, the rejection of the claim, and rested. This made a

prima facie

case. (Code Civ. Proc., sec. 1963, subd. 21;

Griffith

v.

Lewin,

125 Cal. 620, and cases cited.) The want of consideration thereafter became an affirmative defense, the burden of which rested upon defendant.

(Pastene

v.

Pardini,

135 Cal. 433.) Defendant did not attempt to prove that the note was not executed, nor that it was not signed by deceased. The only evidence offered for the purpose of proving want of consideration was the cross-examination of plaintiff. It appeared thereform that at the

[547]

time of the execution of the note, January 28, 1898, the plaintiff was the administrator with the will annexed of Mary Thompson, his deceased mother, who died of consumption in November, 1895, and whose will was admitted to probate in January, 1896. Prior to her death, four of her children— John, James, Isaac, and Jack—had died. She left surviving her the plaintiff and Thomas L. Thompson and Mary A. Thompson, being her children and her only heirs. Thomas L. and Mary A. died—also of consumption—after the execution of the note sued upon. Plaintiff is therefore "the sole surviving child of Mary Thompson, deceased.