Annie Lifrand, hereinafter called plaintiff, brought suit against Bazell Motor Company, a corporation, and various individuals, hereinafter called dеfendants, on a promissory note given by the defendants to E. T. Malich and by him assigned to plaintiff. The note was secured by a realty mortgage, and plaintiff asked for the usual *323 foreclosure decree thereon. After the filing of the suit, Sidney Sapp, the duly appointed, qualified and acting administrator of the estate of E. Y. Malich, was by the court allowed to file a complaint in intervention. The gist of this complaint was that Malich, at the time he made the assignment of the note and mortgage in question to plaintiff, was incompetent to make- it on account of his mental condition, and that they were therefore still the property of the estate of E. Y. Malich. Plaintiff answered, denying the allegation that her assignor Malich was nоt competent to make the assignment in question, and in the third section of a second and separate defense alleged, among other things, “that the said assignment of said note and mortgage aforesaid was executed and delivered by said E. Y. Malich to this plaintiff for a good and valuable consideration and for love and affection,” and set up a judgment rendered in California in bar of the plea in intervention. Intervener rеplied as follows:
“Now comes Intervener and denies both generally and specifically, all material affirmative allegations set forth by рlaintiff in first three sections of so-called Second Defense to Intervener’s Amended Complaint. ’ ’
The case was tried to the court sitting without a jury, аnd a large amount of testimony was taken, most of it being upon the question of whether or not, at the time the assignment was executed, Malich was сompetent mentally to make it, but a considerable portion being on the issue of what, if anything, was the consideration for the assignment. So far as the question of mental competency is concerned, there is a sharp conflict in the evidence. The physicians whose evidenсe was offered by intervener testified substantially that Malich at the time he made the *324 assignment was in an abnormal state mentally and not in a condition to transact any important business. On the other hand, a number of lay witnesses testified that in their opinion he was competent for that purpose.
It is urged that the court was bound to consider the testimony of the physicians as conclusive on this point. We are cited to no authorities supрorting this contention, and it seems to us obviously unsound. If the opinion of the physicians is conclusive upon a matter of this kind, there is no reason why lay tеstimony on the subject should be admitted at all, yet it is universally held that such testimony is proper. Since the trial court found, on conflicting evidence, that Malich at the time of the execution of the assignment in question was competent to make it, we are bound by its findings.
The question as to the considеration is more serious. It is first contended by plaintiff that under the pleadings the issue of want of consideration .is not before us, for the reason that the reply of plaintiff, above set forth, being merely a general denial, did not raise an issue on that point. It is the ordinary rule of pleading that, wherе a suit is based upon an instrument which as a matter of law imports a consideration, it is not necessary that a consideration be pleadеd, nor can a want or failure thereof be offered in defense under a general denial.
Griffith
v.
Wright,
The note and assignment on which plaintiff relies, under thе laws of Arizona, import a consideration. Section 3048, Rev. Code 1928. It was not necessary for plaintiff to plead or prove a considеration
*325
therefor, and her allegations that the assignment was made “for a good and valuable consideration and for love and affeсtion” were immaterial and mere surplusage, and the general denial of intervener, above set forth, was entirely insufficient to raise the issue оf want of consideration. Had plaintiff objected to the introduction of any evidence on this point, the trial court should, and doubtless would, havе sustained- the objection. But the reporter’s transcript shows clearly that both plaintiff and intervener assumed that the question of consideratiоn was before the court, and they devoted much time to showing what such consideration was. Having tried the case on that theory in the lower cоurt, they cannot change their theory on appeal.
Tevis
v.
Ryan,
*326 A valuable cоnsideration implies a profit to the promisor or a loss or detriment to the promisee. 13 C. J. 315, and cases cited. We have examined the rеcord carefully on this point, and are of the opinion that it appears the consideration of $10 recited in the assignment was merely а nominal one, and that there was no profit passed to the promisor and no loss or detriment to the promisee which will sustain the finding of the court that there was a valuable consideration for the assignment. The'record shows-clearly that, if the assignment is effective at all, it is not on the theory of a bona fide contract between the parties, supported by a sufficient consideration, but as a donation causa mortis. Whether it was valid as such was nеver determined by the trial court, for the reason undoubtedly that the parties did not raise that issue in their pleadings. It is therefore necessary that the case be reversed and remanded for a new trial, with leave to the parties to amend their pleadings in accordance with the opinion expressed herein. Nor will such an amendment state a new cause of action. This is a suit to foreclose a mortgage, and both plaintiff and intervener agreed that it should be foreclosed. The only question in issue between them is whether the assignment on which plaintiff bases her clаim that she is the owner of the note and mortgage, and therefore entitled' to maintain the suit legally, was legally transferred to her, and we think it in no way is a new cause, of action to allow plaintiff to base her claim of ownership thereto on the theory that such assignment was a gift rather than a contract.
The judgment of the superior court is reversed and the case remanded for a new trial.