Morehouse v. Allen

THE COURT.

This is an appeal from a judgment entered upon an order granting the plaintiff’s motion for judgment on the pleadings.

The action was on a promissory note dated February 28, 1921, for $3,000, executed and delivered by the defendant to the plaintiff. The terms of the note provide that it is payable “on demand, six months after date”, but it is also provided that “in the event of the extension, renewal, novation, or substitution of a certain note of February 15th, 1921, for $3,000 made by Carl B. Suksdorf and others in favor of N. J. Morehouse, then the time for the payment of this note shall automatically be extended to the same date as the maturity of such aforesaid extension, renewal, novation or substitution”. In his complaint, after setting forth a copy of a note, the plaintiff alleged that the note of February 15, 1921, described in the note sued on, had been assigned and transferred to the defendant; that about June 6, 1922, the defendant accepted a novation of said note dated February 15, 1921, which new or substituted note matured on June 6, 1927, and that the plaintiff made due demand for the payment of the note sued on which was refused. Plaintiff prayed judgment for the principal sum of the note and interest. The action was commenced in July, 1927.

The defendant by his answer admitted the allegations of the plaintiff’s complaint with the exception that he denied that the note sued on matured on June 6, 1927, or that the novation or substituted note had yet matured; and alleged as a separate defense the contract of novation wherein it was agreed by the parties, “If this note is not paid on or before June 6, 1927, it is hereby renewed from year to year at the option of the holder, until paid.” It is also

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alleged in the answer that in a certain action commenced and terminated in the superior court of the county of Los Angeles it was adjudged that the novation was legal and binding upon the parties to it. It is further alleged by the defendant that the substituted note has not yet been paid, but that the defendant, the holder thereof, on or about June 6, 1927, exercised the option provided therein to renew said note for one year from June 6, 1927, and that said note as so renewed is not yet due and has not been paid.

The plaintiff made a motion for judgment on the pleadings on the ground that the allegations of the answer did not constitute a defense to the plaintiff’s cause of action and that the plaintiff was entitled to judgment on the note as prayed. The trial court granted the motion on the ground stated and from the judgment entered thereon the defendant has prosecuted this appeal.