Sheehy v. Chalmers

36 P. 514 | Cal. | 1894

BELCHER, C.

On January 5, 1891, the defendant executed to the plaintiff his promissory note, whereby he promised to pay plaintiff, one day after date, $1,050 “in U. S. gold coin,” with interest, etc. On December 1, 1891, the plaintiff commenced this action to recover the amount due on the note, and prayed judgment for the amount “in the gold coin of the United States.” The complaint was verified, and a complete copy of the note was set out therein. The answer of the defendant “admits the making of the promissory note alleged and set forth in said complaint,” and the only defense interposed is an allegation “that it was understood and agreed that the sum sued for in this action was not to become due or payable until after the defendant herein had received sixty days’ previous notice, which notice should be given by plaintiff to defendant before the same should become due or payable”; and a further allegation “that the plaintiff failed and neglected -to give sixty days’ notice, and that the said sum sued for in this action, and that said promissory note, is not due or payable, and that the action herein is premature.” At the trial the plaintiff testified that he was the owner and holder of the note sued upon, and that no part of it had been paid, and then rested his case. The defendant thereupon moved for a nonsuit, upon the ground “that there had not been any alleged promissory note, or aught pertaining thereto, introduced in evidence.” The court denied the motion, and evidence relating to the affirmative defense set up in the answer was then introduced by both sides. The court found, among other things, “that there was not at any time any understanding or agreement whatever between the parties hereto respecting said note sued on, or the time of the payment thereof, other than, or different from, that expressed in said note,” and gave judgment for the plaintiff according to the prayer of his complaint. The defendant moved for a new trial, which was dismissed for want of prosecution, and has appealed from the judgment and order dismissing his motion. Two points only are made for a reversal. They are (1) that the judgment was erroneous in so far as it made the amount adjudged to be due payable “in the gold coin of the United States”; and (2) that the court should have granted the defendant’s motion for a nonsuit because, “at the trial, no note was offered in evidence, and there was no attempt to account for its absence. ’ ’

1. The code provides that: “In an action on a contract or obligation in writing for the direct payment of money, made payable in a specified kind of money or currency, judgment for the plaintiff, whether it be by default or after verdict, may follow the contract or obligation, and be made payable in the kind of money or currency specified therein”: Code Civ. Proc., sec. 667. This action was a contract in writing for the direct payment of money, made payable in “U. S. gold coin. ’ ’ There was no error, therefore, in making the judgment payable in the kind of money specified in the contract: Carpentier v. Atherton, 25 Cal. 564.

2. It was not necessary to introduce the note in evidence, or to exhibit it at the trial. Its execution, was expressly admitted by the answer, and the rule is elementary that no proof is required as to matters not in issue. It is said that “the plaintiff totally ignored the law as to the distinction between primary and secondary evidence,” but no question as to primary and secondary evidence arose in the case. No good purpose would have been subserved by producing the note, and the court, therefore, did not err in denying the motion for nonsuit. We see no merit in the appeal, and advise that the judgment and order be affirmed.

We concur: Vanclief, C.; Haynes, C.

PER CURIAM.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed, and the respondent is allowed $50 damages as a part of his costs on the appeal herein.