Brown v. Scott, 25 Cal. 189

Brown v. Scott

25 Cal. 189 | Cal. | 1864

By the Court, Currey, J.

. This action was brought to recover a .sum of money alleged to be due on a contract executed by the defendant, by which he agreed to pay to the plaintiff one thousand four hundred and forty-four dollars and sixty-six cents, with interest thereon from the 1st of January, 1854, until the same should be paid, at the rate of three per cent per month, upon conditions mentioned and referred to in such contract. The' complaint counts upon this contract, and avers in positive terms the happening of circumstances by which the debt became due, and that the defendant refused to perform his contract. The consideration for the contract of the defendant, which is alleged ' in the complaint, was the assignment of three judgments belonging to the plaintiff, which he had obtained in a Justice’s Court, amounting in the aggregate to the sum of one thousand four hundred and forty-four dollars and sixty-six cents, and which the defendant used in the purchase of property of the debtors against whom such judgments were obtained at a sale thereof, made under and. by virtue of divers judgments' and executions. Each of the judgments so assigned by the plaintiff exceeded two hundred dollars.

*195To the complaint, which was duly verified, the defendant filed an answer, in which he says that after stating to counsel learned in the law all the facts attending the making of the contract, he is informed by counsel, and verily .believes, and so charges the truth to be, that the promise in the contract contained to pay the plaintiff the sum of money named therein, or any part of it, was wholly without consideration and null and void, and that therefore he was not liable on his promise; and then in the same connection he alleges that the judgments, the assignment of which to the defendant is mentioned in the contract as the consideration for defendant’s promise, were entirely null and void; and further on in the answer the defendant denies, “according to his best knowledge, information and belief,” that said judgments, or either of them, were ever transferred or assigned by the plaintiff to the defendant or to any other person for his use.

This mode of denial is argumentative. In the first place the defendant avei’s, upon information derived from Ms counsel, and upon his belief founded on that information, that Ms promise, contained in the contract, was without consideration; and the reason assigned for this is that the three judgments, the transfer of which to the defendant is set forth in the contract as the consideration for the defendant’s promise, were null and void; and then it is denied, according to the defendant’s best knowledge, information and belief, that said judgments—that is, the judgments which the defendant had been advised were null and void, and which, because they were so, were no judgments—had been assigned to Mm or to Ms use. This will not do. A denial of this sort is evasive of the issue tendered, and must be treated as failing to traverse the allegation of the complaint.

The defendant also denies, according to the best of his knowledge, information and belief, that the property of the judgment debtors referred to in the contract and in the complaint was sold at Sheriff’s sale on executions issued on said three judgments, but avers that the same was sold under an execution issued on another judgment.

*196The plaintiff alleged in his complaint that the Sheriff’s sale mentioned was made on executions issued upon these three judgments, as well as on executions issued upon other judgments, and that at such sale the defendant became the purchaser of the property sold, and used the said three judgments so assigned to him in payment of the amount by him bid. The defendant ought to have known, and will be held to have known, whether he purchased under executions issued on these judgments or otherwise, and whether or not he used the same judgments in paying the amount bid by him. The law does not sanction this mode of pleading. The defendant should have admitted or denied the facts alleged by the plaintiff, or should have shown how it happened that he was without knowledge as to such facts. (Fales v. Hicks, 12 How. Pr. R. 154; Richardson v. Wilton, 4 Sand. 708; Hance v. Rumming, 2 E. D. Smith, 48; Mott v. Burnett, Id. 50; Shearman v. New York Central Mills, 1 Abbott, 187.) To the same effect is the case of Curtis v. Richards, 9 Cal. 37, and San Francisco Gas Co. v. City of San Francisco, Ib. 453. It matters not that the judgments assigned were invalid as judgments, within the authority of Zander v. Coe, 5 Cal. 230, because by the assignment thereof the debts for which they were obtained were assigned to the defendant ;■ besides this he used these judgments in paying the amount due on his bid, in which the debtors whose property was sold were concerned; and it does'not appear but they were satisfied to receive these judgments or the debts represented by them in payment on the amount due from the defendant on his purchase. It is to be presumed they were satisfied with this mode of payment, for it is alleged in the complaint that the judgments were used by the defendant in paying the sum at which he purchased the property. He certainly is not in a position to object that these judgments were of no value to him, when, as a fact, they were received in payment of a sum due from him on his pin-chase, equal to the amount they represented.

The answer fails to put in issue or to confess and avoid the material allegations of the complaint, and therefore there was *197no issue to be tried by a jury. The complaint in such cases is to be taken as true. (Practice Act, section 65.)

We think the plaintiff was entitled to the judgment which was rendered on the pleadings.

Judgment affirmed.

Mr. Chief Justice Sanderson, having been of counsel, did not sit on the trial of this case.