Ball v. Putnam

Citations

• 123 Cal. 134
• 55 P. 773

Syllabus

<p>Action upon Note—Pleading—Variance—Amendment.—Where thereis a variance between a promissory note set out in haec vervain a complaint thereon, and the form of the note produced in evidence, if an objection is made that they are not the same,, although the variance is not material, good practice requires-that the variance be explained, and that any error found to’ exist in the copy set out in the complaint should be corrected! by amendment.</p> <p>In.— General Denial—Nonpayment — Evidence — Cross-Examination.—A general denial of an unverified complaint in an action upon a note puts in issue the nonpayment of the note, and renders material and relevant any evidence on the subject of payment; and the plaintiff,who has testified on examination in ' chief that only the amount credited in the complaint was paid! on the note, may be cross-examined as to whether there was not another payment, and if he had not so stated at a time and place, and to a person named.</p> <p>Id.—Admission in Separate Defense.—An admission in a separate defense by failure therein to deny the nonpayment of the note is not available by the plaintiff in proof of the issue as to nonpayment raised by the general denial.</p> <p>Id.—Public Policy—Void Contract—Duty of Court.—If the consideration of the note in suit was a contract which was against public policy, good morals, or the express mandate of the law, the note cannot be made the basis of any action, legal or equitable; and it is the duty of the court to make inquiry upon that subject, and to withhold relief, if satisfied that such is the fact. Neither the silence nor the consent of the parties justifies the court in retaining jurisdiction of such an action.</p>