Moran v. Abbey
Before: McKee
Synopsis
Demurrer—Waiver—Presumption.—Where the defendants, after a demurrer to the complaint—which does not appear from the record to have been disposed of—answer to the merits, the presumption is that the demurrer has been waived or overruled.
Promissory Note—Payment—Evidence.—A. and H. made their promissory-note—of date December 20th, 1875—payable to the order of the payee one year after date at the banking house of R. S. & Co. After the maturity of the note—upon the suggestion of A. that the note was bearing good interest, and that the plaintiff should take it out of bank and hold it for himself—the plaintiff, without suing the owner of the note or having any negotiations with him, went to the bank where the note had been left for collection, paid to the agent the amount, and recovered from him the note unindorsed; but more than two years afterwards, upon being advised by his lawyer that an indorsement was necessary, procured the indorsement of the payee “without recourse,” and brought this action. Upon the trial—the plaintiff being on the stand—the defendant offered .to show by the witness, ‘ ‘ that, through a large course of dealings between M., the plaintiff, and A., M., without having consulted with H. (the payee), takes A. ’s money to the bank and pays the note; and that he held at that time all the property of A. in his hand, and that the payment on that occasion, though nominally made by M., was in fact made by A., growing out of the nature of the transactions of the parties;” and the offer was rejected on the ground that the evidence was irrelevant and immaterial.
Held: The circumstances offered to be proved, in connection with the circumstances attending the transaction with the bank, would have tended to prove payment of the note by the plaintiff for A., and at his request, and the court erred in rejecting the evidence.
Evidence—Relevant—Definition.—The meaning of the word relevant, as applied to testimony, is that it directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the truth of it.
McKee, J.: Action upon a promissory note. On December 30th, 1875, Daniel Abbey and Phillip Heffner made and delivered to George Hancock their joint and several promissory note for the sum of nine hundred dollars, payable one year after date to the order of George Hancock, at the banking house of Rideout, Smith & Co., in Oroville, with interest thereon at the rate of one and a half per cent, per month from date until paid. The note was left in the hanking house of Rideout, Smith & Co. for collection.
In November, 1879, the payee indorsed it “without re[165]course,” and immediately thereafter, the plaintiff commenced this action upon it. To the complaint in the action the defendants filed a demurrer, which does not appear by the record before us to have been disposed of, but the presumption is that it was waived by the defendants, or overruled by the Court, as the defendants, after demurring, answered separately to the merits—Abbey pleading payment by a discharge in bankruptcy, and Heffner the general denial and payment. Upon these issues the case was tried by the Court with a jury. Plaintiff had verdict and judgment against Heffner alone for one thousand seven hundred and thirty-eight dollars and forty-two cents, from which, and the order denying his motion for a new trial, he appeals.
In the course of the trial of the case, after the plaintiff had testified to the circumstances of getting the note from the bank, and of its subsequent indorsement by the payee, counsel for the defendant, in cross-examination of the plaintiff, asked him the following question, viz.: “How, during these years, from 1875 up to this time, have you been holding all Abbey’s property ? What property has Abbey owned that you did not hold ?” This was objected to on the ground that it was irrelevant and immaterial. Upon which counsel for defendant rose and made the following offer: “We offer to show that through a large course of dealings between Moran and Abbey, Moran, without having consulted with Hancock, takes Abbey’s money to the bank and pays the note; and that he held at that time all of the property of Abbey in his hands, and that the payment on that ■ occasion, though nominally made by Moran, was, in fact, made by Abbey, growing out of the nature of the transactions of the parties.” The same objection was made to the offer, and the Court sustained the objection, to which the defendants excepted, and the same is assigned as error.
The fact in ° the issue made by the defendant Heffner, was payment. That fact was provable not only by the circumstances attending the taking up of the note from the bank, but by those of the relation existing between Abbey and the plaintiff, and their course of dealing with each other in their business and with reference to the property of Abbey.
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