Cullen v. Bisbee

SHAW, J.

The appeal in No. 2106 is from the judgment; that in No. 2127 is from an order denying defendant’s motion

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for a new trial of the action. Both are presented upon a single transcript.

The action is upon a promissory note for five thousand dollars, executed by Elias S. French, in his lifetime, to the plaintiff. The answer denies the execution of the note, and, in effect, it also sets up the defenses of want and failure of consideration. The court found that the note was duly executed and upon a sufficient consideration. After deducting an offset alleged in a counterclaim, which the plaintiff admitted, judgment was given for the balance.

In the course of the trial, it was shown that the plaintiff, at the time the note was executed, was, and ever since has been, the wife of Harry M. Cullen, living with him in that relation. The defendant asked leave to amend his answer by alleging that the note was community property and that Harry M. Cullen, the plaintiff’s husband, was the real party in interest and was not a party to the action. Leave to do this was refused. Harry M. Cullen was allowed to testify as a witness for .the plaintiff, over the objection of the defendant that he was a party interested in a claim against the estate of the deceased person and that, under the provisions of subdivision 3 of section 1880 of the Code of Civil Procedure, he was incompetent to testify as to any matter or fact occurring before the death of such deceased person. The court below found that the note was the separate property of the plaintiff, and this finding is challenged as contrary to the evidence. The above rulings and findings are assigned as error.

These points each involve and depend upon the one question, whether the note, when executed, was the community property of the spouses or the separate property of the plaintiff. If it was her separate property, it would necessarily follow that the nonjoinder of the husband would be no defense to the action and he .would be a competent witness to matters occurring before the death of French.

The note was executed in connection with a certain contract between French and the plaintiff and her husband. The two documents are as follows: