Cohen v. Goux

48 Cal. 97 | Cal. | 1874

By the Court, Wallace, C. J.:

'The action is brought upon an instrument in writing for the direct payment of money, designated in the pleadings a promissory note, and having in fact most of the elements of a contract of that character. It was made by the defendant and one Manuela Packard, and was payable on its face to the order of R. Cohen & Co., a copartnership firm, since dissplved, of which copartnership the plaintiff had been a member.

The answer of the defendant sets up that the latter signed the instrument at the request of one Kahn, at the time a member of the firm of R, Cohen & Co., without consideration, and only for the accommodation of the plaintiff, of all of which the plaintiff at the time had notice, etc.

At the trial the plaintiff put the note in evidence, and rested.

The Bill of Exceptions in the record proceeds as follows: The defendant, Goux, was then offered as a witness on Ms own behalf, to prove by his testimony that said note was signed by him without any consideration, and as an accommodation to the plaintiff. The plaintiff objected to said «evidence, on the ground that the note itself carried on its face a consideration, and was the best evidence. The objection was sustained by the Court, and the defendant duly excepted. Thereupon the Court ordered judgment for the plaintiff in the full amount claimed.”

That .the defendant was at liberty, as against the plaintiff here, to show want of consideration for the making of the note, and that such want of consideration, if shown, amounted to a full defense to the action, are propositions too plain to admit of discussion. The Code of Civil Procedure, section one thousand eight hundred and fifty-six, cited by the counsel for the respondent, has wrought no change in the law in these respects.

Judgment reversed and cause remanded. Remittitur forthwith.