11 Utah 310 | Utah | 1895
Hyrum Groesbeok and Nicholas H. Groesbeck executed, their promissory note in favor of Henry M. Eyan and Alexander Wood. Plaintiff, in his complaint, alleges that he purchased said note, after its indorsement by the payees and P. H. Easche, for a valuable consideration, and before-maturity, and that said indorsement was a part of the consideration inducing the purchase. Defendant Eyan filed a separate answer, the other defendants having defaulted, in which he averred that .tbe defendant Easche sold and transferred said note to plaintiff, but prior thereto the defendant Eyan specially ordered and instructed him, in case he should sell or transfer said note, that at or before making such transfer he should erase Byan’s name from the back, as an indorser; that Easche expressly promised and agreed that he would do so, and would not transfer the note with Eyan’s indorsement thereon; that, at the time of the sale and transfer of the note to the plaintiff, he was expressly informed of the agreement, between Eyan and Easche, and the said instructions given by the former to the latter; that the plaintiff then purchased and received said note understanding that the transfer was to be without recourse upon the defendant-Eyan, and that the latter was not to be responsible .as an indorser; and that the plaintiff purchased and took said note with this understanding and agreement. Defendant further avers that, owing to mistake and inadvertence of the plaintiff and Easche, Byan’s name was not erased from the back of said note as was agreed and understood between them (plaintiff and Easche). Plaintiff filed a motion to-strike out the answer as sham, and for judgment on the pleadings, which was overruled. Afterwards he moved to-set aside the order denying this motion, and for judgment on the pleadings, and upon this motion the court entered the following judgment: “It is therefore ordered and
The assignments of error relate to the action of the ■court in striking from the files defendant’s answer, and present for determination the question of its sufficiency as a defense. Respondent insists that, conceding the truth of the averments therein contained, no facts constituting •a defense were presented, and no proof would be admissible under it, for the reason that it would tend to vary the terms of the written instrument upon which suit was brought. Appellant’s contention is that the rule forbidding parol evidence to contradict written instrument has no application to this case.
The answer is very ambiguous and uncertain, and is ■clearly demurrable. There is some doubt as to the meaning of various allegations. But a demurrer is very different from a motion to strike a pleading from the files, ■although the practice is too often indulged in to substitute the latter for the former. An answer which may be •subject to demurrer may be invulnerable when assailed by .a motion to strike out. Upon a motion of this character the court is to be guided by the statute, which declares that, “in the construction of a pleading for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” 2 Comp. Laws, § 3228> Keeping in view this just statutory provision, let us ascertain what the answer means. In doing this it should be construed as a whole. Isolated sentences may convey an erroneous idea, and .superfluous- averments form no part of the pleading, and,
Eespondent contends that it contains no averments of agency, and that the only construction of which it is susceptible is that Eyan was not to be responsible as an indorser, but that the note was sold and transferred by Easche with the-indorsement thereon, and with the intention that it should remain, but with the understanding that the plaintiff took it without recourse upon Eyan. And one portion of the-answer warrants this construction. But a consideration of the preceding allegations, and the one which follows, separated only by a semicolon, reveals the true meaning of the pleader. It is true that the answer contains no direct allegation of Easche’s agency, but it avers that instructions were given him. Agency may be well pleaded without employing the word “agent.” But it is doubtful whether the question of agency is involved in this case.
While not directly in point, the case of Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, is in line with the views, herein expressed. The court say: “ In other words, according to the evidence offered and excluded, the written instrument upon which this suit is based was not, except, in a named contingency, to become a contract or a promissory note, which the payee could at any time rightfully transfer. Evidence of such an oral agreement would show that the contingency never happened, and would not be in contradiction of the writing. It would prove that there never was any concluded, binding contract entitling the party who claims the benefit of it to enforce its stipulations.” And in the case at bar parol evidence offered under the answer would prove that no contract of indorsement was ever concluded. It would destroy the prima, facie evidence of the existence of an indorsement, but. would not vary or contradict it, and would be of like-character as evidence tending to show the “contingency never happened. * * * Evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible.” Pym v. Campbell, 6 El. & Bl. 370. Parol evidence is admissible to prove that an indorsement upon a promissory note is not a consummated contract, and to relieve the-indorser, where the note had been converted by the plaintiff,, after indorsement, and he had paid the indorser, who was-payee, the face of the same. Haas v. Sackett (Minn.), 41 N. W. 239. Suppose a principal should execute a bill of sale of an animal, leaving a blank for the vendee^s name, and include therein a warranty, and place the instrument, and animal in the hands of his agent to dispose of, and, prior to the sale, instructs his agent to erase from the instrument the portion containing the warranty, and to.
But respondent contends, even if the court erred, its action cannot be reviewed by this court, for the reason that the appeal was taken on the judgment roll alone, and “its proceedings under the several motions are not presented.” It would be a work of supererogation, in view of the wealth of learning found in the decisions of California and other states having a procedure act similar to ours, and of the lucid provision of our Code, to discuss the province of bills of exception and statements on appeal. Of course, this appeal is to be determined solely upon the-questions presented by the judgment roll. The Code of Civil Procedure provides “that the pleadings, a copy of the verdict of the jury or findings of the court or referee,
In the case of Zeile v. Moritz, 1 Utah, 285, a demurrer "to the answer had been sustained, and judgment rendered for the plaintiff. The appeal was taken upon the judgment roll. The court say: “The judgment in this •case discloses the action taken by the court on the •demurrer. The recitals in it bring before us all the facts .necessary to enable the court to determine whether there was error or not; that is, the sufficiency of the answer. They accomplished all that could be accomplished by a ¿statement.” Errors in pleading can be reviewed on appeal from the judgment upon the judgment roll. Putnam v. Lamphere, 36 Cal. 158; Jones v. City of Petaluma, Id. 332; Smith v. Lawrence, 38 Cal 28. In the case last cited