7 Colo. 87 | Colo. | 1883
Appellee brought suit against the appellant, E. K. Alden, and one A. L. Price, upon a promissory note, of which the following is a copy:
“$1,0Ó0. Pueblo, Colorado, January 5, 1882.
“One month after date, we, jointly and severally, promise to pay to the order of A. V. Carpenter one thousand dollars, without interest, at The Stockgrowers’ National Bank. Value received.
“Alden & Price,
“E. K. Alden,
“A. L; Price.”
The separate answer of Alden denies that he, or any authorized person for him, executed said note, and denies that the said note was executed and delivered to plaintiff by defendants.
The separate answer of Price alleges that the note was given without any good or valuable consideration whatever.
Defendant Alden filed an affidavit for continuance, on the ground of the absence of a certain witness, by whom, he expected to prove that said defendant Alden “authorized said Price to sign a note for the indebtedness to plaintiff, on the express condition that the said note should contain a provision for its renewal at the option of defendants at maturity, and that this provision was afterwards omitted from the note when executed by said Price, as aforesaid, without said Alden’s consent.” The motion for continuance was argued by counsel and taken under advisement by the court, and afterwards, when the court was about to announce its decision granting the continuance, the plaintiff offered to admit that the witness,
Another point made by counsel for defendants is that the offer of plaintiff should have been to admit the truth of the supposed testimony, and not merely that the absent witness would swear to the same if present. For the same reason error is assigned to the ruling of the court in allowing plaintiff, on the trial, to introduce evidence contradicting the admitted testimony of the absent witness. There was no error in this. Admitting the testimony of an absent witness, in order to'avoid a continuance of the cause, is not to be taken as an admission of the truth of such testimony; nor does such admission preclude the party admitting it from rebutting the same on the trial. Boggs v. The M. N. Co. 14 Cal. 358; Blakeman v. Vallejo, 15 Cal. 639; O’Neil v. N. Y. etc. Co. 3 Nev. 141; State v. Geddis, 42 Iowa, 264.
Another ground of error assigned is, that, since the plaintiff filed no reply to the separate answer of Price averring want of consideration for the making of the note, this averment must be taken as admitted to be true, and that, as such defense extended to both defendants, the plaintiff was not entitled to judgment.
Two questions arise upon this assignment: First. Could the defendant Alden, who, by his own plea, had merely denied the execution of the note, claim the benefit of this separate plea of the defendant Price? Second. Was this plea one which required a reply? As we think this last question must be answered- in the negative, it is unnecessary to pass upon the first.
' In assumpsit at common law evidence of the want of consideration for the contract declared upon was admissible under the general issue, and hence there was no necessity for the defendant’s pleading it specially. The practice, however, under which almost everything had come by degrees to be allowed as a defenses under the general issue in actions of assumpsit and debt, was materially changed by the rules of the English courts known as the Hilary Term Rules, under the statute of. 4 Wm. 4, for the purpose of preventing an abuse, by which the plaintiff was frequently misled as to the special defense intended to be relied upon under the general issue; and for some such reason, probably, a statute of Illinois, under which decis
In New York it is held that evidence of payment, release, accoixl and satisfaction, and such like defenses, is not admissible under a general denial, but must be specially pleaded, and this ruling is put upon the ground that the general denial, under the code, is wholly unlike the general issue at common law. See the leading case of McKyring v. Bull, 18 N. Y. 297. In California, however, in a suit upon a promissory note, where the complaint averred that the note-was unpaid,- and that there was due upon it a specified sum, it has been held that evidence of payment is admissible under the general denial. Devanny v. Eggenhoff, 43 Cal. 395. This decision is based upon that in the case of Frish v. Caler, 21 Cal. 71, where the defense of payment was pleaded specifically, to which plea there-was no replication; and upon the question whether the want of such replication admitted the plea, the court held that the plea amounted to a simple traverse of the averment in the complaint that the note was due and unpaid, and hence needed no replication. See, also, McArdle v. McArdle, 12 Minn. 98. The question respecting the office and scope of a general denial in code pleadings does not arise in the case before us, since there is no such thing as a general denial in the Colorado code, a specific denial being required to each and every allegation
In the one case the answer is a traverse of the ex
In the case of Goddard v. Fulton, 21 Cal. 430, in construing the nature and effect of code pleadings in a case involving substantially the same question as the one before us, it was laid down that where the allegations of an answer, although stated in an affirmative form, are ha effect only a denial of the allegations of the complaint, they do not constitute new matter within the meaning of the practice act, and therefore, where an answer to a complaint in the usual form on a promissory note admitted the making of the note, but averred that it was made, not on account of any indebtedness between the parties, but for the purpose of being used as collateral security for a debt due a third person from the maker and payee jointly; that the joint debt was subsequently paid, and that the note, having thus become functus officio, should have been canceled, but, through fraud, was taken and held by the payee, and by him transferred to the plaintiff without consideration, it was held by the supreme court of that state that these allegations in the answer wea-e not new matter, which was admitted by a failure to reply; that their only effect was to deny that any obligation of the character stated in the complaint was ever created by the signing of the note, and thus to traverse its essential allegations. In other words, these averments of the answer were deemed to be a mere traverse of the implied consideration of the note sued upon. We are aware that in the numerous discussions of similar vexed questions arising upon the construction of pleadings under the code system, conflicting views are held by text writers and courts of different states, from some of which conclusions are found opposed to that reached by us upon the point under consideration; but upon both principle and authority we feel warranted in holding that the averment of the answer in question
It is also assigned for error, that, pending the consideration of the court, upon a motion made in the case,, and which the court had taken under advisement until a subsequent day, said court allowed another case to be called up, heal'd the same and rendered judgment therein. This was no sufficient cause for assignment of error. It was at most a mere irregularity which could not have prejudiced the appellant in the least. The trial in this case was had to the court without the intervention of a jury, while the acl interim proceedings in the other case, as appears from the bill of exceptions and briefs of counsel, were for the purpose of decreeing a divorce between one George Cruming and Mary, his wife; a matter which was probably treated as of unusual importance, and the case possessing, we may suppose, some elements of urgency, since it occupied the attention of the court but a small part of one day. However much such irregularities in the mode and order of proceedings by a trial court are to be condemned, when they operate to delay pending trials or prejudice parties therein, they may at other times be inevitable, or Aven in furtherance of justice, but at all events, are matters of procedure within the sound discretion of the court, and not assignable for error fatal to a judgment rendered, unless an abuse is shown such as has prejudiced or deprived a party of some right affecting' the fairness and verity of the judgment.
The foregoing are all the alleged errors that need be noticed. Judgment affirmed.
Affirmed.