156 P. 1016 | Cal. Ct. App. | 1916
Lead Opinion
This is an appeal upon the judgment-roll alone from a judgment rendered in favor of the defendant in an action upon a promissory note.
The defendant admitted the execution of the note, but pleaded in his answer that "there was no consideration of any kind or nature therefor, . . ." and that at the time of signing said note the defendant was "laboring under great mental excitement, and that the payee therein threatened to blackmail the defendant if he did not sign the same, and that he signed the same through fear of blackmail and by reason of said fear and not otherwise."
The case was tried and determined upon the issues purporting to have been raised by the pleadings of the respective parties, and upon the issues thus raised the trial court found as a fact that the payee of the note "did not at the time of the signing of said note or at any other time part with anything of value for the execution thereof, and that the said note or contract is and was without consideration of any kind or nature."
The defense of want of consideration for the execution of a promissory note or other written instrument is new matter, which must be specially pleaded, and it seems to be the rule in this state that a general averment that the note or contract *498
sued on was executed without any consideration whatever is but an allegation of a conclusion of law. (Happe v. Stout,
The judgment appealed from is affirmed.
A petition for a rehearing of this cause was denied by the district court of appeal on February 25, 1916, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 27, 1916, and the following opinion then rendered thereon by the supreme court.
Addendum
The petition for a rehearing is denied.
The opinion of the district court of appeal states that "it seems to be the rule in this state that a general averment that *499 the note or contract sued on was executed without any consideration whatever," does not state a good defense, because an averment in that form states a mere conclusion of law.
The only one of the cases cited upon this proposition which appears to support it is Gushee v. Leavitt,
Sloss, J., Lawlor, J., Melvin, J., and Angellotti, C. J., concurred.