Eppinger v. Kendrick

Citations

• 5 Cal. Unrep. 295
• 44 Pa. 234
• 44 P. 234
• 1896 Cal. LEXIS 1103

Syllabus

<p>Pleading.—In an Action on a Note Against One as Surety, defendant denied the suretyship, and alleged that he joined in the execution for the accommodation of plaintiff, and that, if he were liable as surety, the principal maker had put in plaintiff’s hands sufficient wheat to pay the note, and directed that the proceeds thereof be applied thereon, and that plaintiff did not so apply them. Held that, though the defenses were not separately pleaded, the answer was sufficient, when questioned, for the first time, on motion to exclude evidence offered thereunder.</p> <p>Pleading.—In an Action on a Note, on the Issue as to whether defendant signed the note for the accommodation of the maker or for the accommodation of plaintiff, the payee, to enable him to use it as collateral, the testimony of defendant and the agent who acted for plaintiff in securing defendant’s signature was directly contradictory. There was evidence of subsequent circumstances which, on their face, appeared contradictory of defendant’s claim, but, as explained by him, did not discredit his testimony. Held, that a verdict for defendant would not be disturbed.</p> <p>Pleading.—Where Inconsistent Defenses are Pleaded, neither can be used as an admission to destroy the other.</p> <p>Notes—Evidence.—Where, in an Action on a Note, Defendant claims that he signed the note merely for the accommodation of plaintiff, to enable him to use it as collateral, and has already testified as to the circumstances of the transaction, as claimed by him, it is not prejudicial to plaintiff to permit defendant to be asked as to what was his understanding as to the purpose of his signature.</p> <p>Notes—Consideration.—Where There is No Evidence to Show any consideration for a note, other than the circumstances disclosed in the statement of counsel, preceding a question asked by him as to whether there was any other consideration, permitting such question to be asked is not prejudicial.</p>