Morrill v. Morrill

By the Court, Sanderson, C. J. These are actions upon promissory notes by an indorsee against the maker. The pleadings and facts are the same in both. The complaint in each alleges that the note was assigned to the plaintiff for a valuable consideration before maturity. Three answers were filed by the defendant, respectively denominated “ Answer,” “ Supplemental Answer,” and “ Further Answer.” The first attempts to put the assignment only in issue. The second alleges that the money due on the note has been attached in the hands of the defendant at the suit of a third party. The third pleads payment to plaintiff’s assignor prior to the assignment. The second answer seems to have been abandoned at the trial. The first answer was filed on the 11th of September, 1863, and the last on the 5th of November thereafter.

The notes were dated on the 1st of January, 1862, one due four and the other six months after date. On the 8th of February, 1862, the plaintiff’s assignor sold to defendant a large amount of merchandise and other property, notes and debts [292]due and owing, and gave him a bill of sale thereof, in which the property, notes, etc., are particularly described, until we come to the last item, which is in the following words :

“ All other debts, notes and accounts, of whatever nature, due me, and the good will of the business, for the sum of $3,000.”

On the trial the defendant offered in evidence this bill of sale in support of the plea of payment contained in his third answer. It was excluded by the Court, which ruling is the only error assigned.

If. the notes were assigned before maturity, as alleged in the complaints, payments to the assignor would be no defense to an action by the assignee, unless it was made before the assignment and the assignee took with notice, which is not pretended in this case; and it is insisted by the respondent that his allegation respecting the assignments is not sufficiently denied by the answers, and is therefore admitted, and we are of the opinion that such is the case. The denial is in these words:

“ That he denies that the promissory note mentioned in said complaint was for a valuable consideration indorsed and delivered by C. Morrill to plaintiff before its maturity or at any other time.” This denial does not put in issue the fact that the note was assigned before maturity. If it puts anything in issue it is only the fact that the assignment was made for a valuable consideration, and not the fact that it was ■made before maturity. (Burke v. Table Mountain Water Company, 12 Cal. 407.) The pleadings being verified, and the assignment before maturity not specifically denied, it must be taken as admitted for the purposes of the trial. And being admitted, the defense of payment to the plaintiff’s assignor fails, for it is not alleged or pretended that the plaintiff took the notes with notice of such payment. Admitting, then, that the bill of sale amounts to proof of the alleged payment, its rejection by the Court was right, for the payment in view of the admission of the assignment before maturity constituted no defense.