Ball v. Putnam

California Supreme Court Dec 22, 1898 No. Sac. No. 435Published

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Holding. The court held that a general denial in an answer puts all material allegations of the complaint at issue, including the amount paid on a promissory note, and that such issues cannot be nullified by separate affirmative defenses. Consequently, the trial court erred in excluding cross-examination and evidence regarding additional payments on the note.

Issues

Whether a general denial in an answer puts in issue the amount alleged to have been paid on a promissory note despite a separate affirmative defense.
Whether the trial court erred in restricting cross-examination regarding payments made on the note.
Whether the trial court erred in excluding evidence of payments made to a bank holding the note as collateral.

Disposition. reversed and remanded

Synopsis

Action upon Note—Pleading—Variance—Amendment.—Where thereis a variance between a promissory note set out in haec vervain a complaint thereon, and the form of the note produced in evidence, if an objection is made that they are not the same,, although the variance is not material, good practice requires-that the variance be explained, and that any error found to’ exist in the copy set out in the complaint should be corrected! by amendment.

In.— General Denial—Nonpayment — Evidence — Cross-Examination.—A general denial of an unverified complaint in an action upon a note puts in issue the nonpayment of the note, and renders material and relevant any evidence on the subject of payment; and the plaintiff,who has testified on examination in ' chief that only the amount credited in the complaint was paid! on the note, may be cross-examined as to whether there was not another payment, and if he had not so stated at a time and place, and to a person named.

Id.—Admission in Separate Defense.—An admission in a separate defense by failure therein to deny the nonpayment of the note is not available by the plaintiff in proof of the issue as to nonpayment raised by the general denial.

Id.—Public Policy—Void Contract—Duty of Court.—If the consideration of the note in suit was a contract which was against public policy, good morals, or the express mandate of the law, the note cannot be made the basis of any action, legal or equitable; and it is the duty of the court to make inquiry upon that subject, and to withhold relief, if satisfied that such is the fact. Neither the silence nor the consent of the parties justifies the court in retaining jurisdiction of such an action.

THE COURT. Action upon a promissory note. The cause was tried without a jury, findings were waived, and judgment entered for plaintiffs. Said appellants appeal from the judgment and from an order denying a new trial.

The complaint alleges that on March 6, 1889, the defendants made their promissory note “in words and figures following:

“Sacramento, Cal., March 6, 1889.

“For value received, we, and each of us, promise to pay to J. C. Ball and J. R. Troxel the sum of six thousand dollars ($6,000) on or before the fifteenth day of March, 1889, with interest at the rate of ten per cent per annum from date.

“(Signed) AUGUST HENNING,

“K. E. KELLEY,

“J. E. PUTNAM,

“F. G. CRAWFORD,

“W. H. KELLEY,

“JOSEPH MULLER"

[136]It is also alleged that plaintiffs are the owners and holders of said note, and that no part of it has been paid except the sum. of two thousand eight hundred and ninety-two dollars and fifty cents, which was paid on March 8, 1889. The complaint was not verified.

The defendants, for a first defense, denied each and every allegation of the complaint; and, for a second and separate defense, set out a detailed history of the circumstances under which the note was made, and, with much less perspicuity, the purposes for which the money represented thereby was intended and was in fact used.

The substance of said second defense is that all the parties to the note were in the city of Sacramento on March 6th; that plaintiffs represented to defendants that they had promised to pay to “certain persons” in said city the sum of six thousand dollars, and were in immediate need of the money, which was to be paid to said persons at 10 o’clock the next morning; thattheydid not have the money, but would receive that sum from the Bank of Willows, in Colusa county, at 4 o’clock the next day; that if the defendants would make said note the plaintiffs would indorse it and raise the money at a bank in Sacramento, and when the money should arrive from Willows in the afternoon they would take up said note and destroy it; that such was the only purpose for which they would use the note, and that in no event would any of the defendants ever be required to pay it or any part of it; that, relying on these representations, they made the note; that defendants received no consideration for it, and the facts set out was the only consideration; that plaintiffs never used said note for the purposes for which they said it was intended, and now hold said note without paying any consideration therefor.

Ball v. Putnam

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