Nulty v. Price

SHENK, J.

This is an appeal from a judgment in favor of the plaintiff on three promissory notes dated December 11, 1920. Each note was signed by the defendant as maker. The first one sued on was made in favor of Anna Nulty, wife of the plaintiff, in the sum of $6,225, and was assigned to the plaintiff before the action was commenced. The second and third notes were made in favor of the plaintiff in the sums of $2,000 and $5,072.90, respectively. In his answer the defendant admitted that he had signed said notes, but alleged as to all of them that they were signed when he “was incapacitated and weak from intoxication and unable to act for himself and done under threats of great bodily harm to defendant made by said Anna Nulty and others then and there present and the plaintiff herein. Said threats were made before and at the time of the signing of said instruments and the same were signed by said defendant in the belief that he could escape great bodily harm only by signing the same.” As to the first and third notes, it was alleged in the answer that they were made without consideration. The court, sitting without a jury, found these allegations of the answer to be untrue and entered judgment for the full amount of the principal sums, interest, attorneys’ fees, and costs. As to the findings on the alleged incapacity and want of consideration, the defendant contends that they are wanting in sufficient evidentiary support. The evidence on those issues is voluminous and presents a conflict of a very material character. The trial court was the judge of the credibility of the witnesses. Assuming that we have under present law the power to make findings, in a case such as the present one, contrary to those made by the trial court, we do not feel.

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warranted in doing so on the evidence presented by the record.

The note set forth in the second count provides: “Two W. T. Nulty I promise too pay for value received 2000 Two thousand dollars of horse hire which I promise to pay” with interest, etc. It is contended that this is not a promissory note by reason of the inclusion of the phrase “of horse hire.” No question of the negotiability of the note is here involved, as the action is between the payee and the maker. The point is that the obligation is not one for the payment of “a sum certain in money.” (Civ. Code, sec. 3082.) The complaint alleged in the second count that the defendant “made a certain promissory note in writing,” further describing it and then setting forth a copy thereof in full. This allegation was not denied and the plaintiff insists that the defendant is now in no position to urge the point. Assuming for the purpose of this case that the admission is not binding on the defendant in the presence of a copy of the note in the pleading, it is clear that the words “of horse hire” are but a description of the source of the consideration for the obligation and are not a designation of payment in services to be performed. (See