Brown v. Weldon

Appeal from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.

The action was brought on a promissory note. The complaint was unverified, and alleged that the defendant was indebted to the plaintiff in the sum of $765 upon a promissory note, set forth in hæc verba, made by the defendant to Mrs. L. H. Brown, dated at Oakland on the 5th of January, 1878, and then and there delivered to her; that afterwards and before the note became due, Mrs. L. H. Brown, for a valuable consideration, sold and transferred it to the plaintiff, by an indorsement on its back, and delivered the same to him. The complaint further alleged that the plaintiff was the owner and holder of the note; that the same was long past due and owing to him; that there was due and owing on it the sum of $500, and interest thereon from date at one per cent per month, amounting to the full sum of $765, no part of either principal or interest having been paid. The defendant demurred to the complaint on the grounds: 1. That it did not state facts sufficient to constitute a cause of action; and 2. Because it was ambiguous, unintelligible, and uncertain in not stating when or where the note was made, or that the defendant ever promised to pay the same or any part thereof. The demurrer was overruled, whereupon the defendant answered, denying generally the allegations of the complaint, and alleging want of consideration, and that the note was not made in California, and that the action was barred by the statute of limitations. The answer was unverified. The court found in favor of the plaintiff, and judgment was entered accordingly. On the trial the plaintiff rested his case without offering any evidence to prove the execution of the note. The defendant thereupon moved for a nonsuit, which was denied. The further facts are stated in the opinion of the court.