Haines v. Snedigar

Citations

• 110 Cal. 18
• 42 P. 462
• 1895 Cal. LEXIS 1010

Syllabus

<p>Action upon Note—Defense—Warranty—Special Agreement—Burden of Proof—Evidence—Nonsuit.—In an action upon a note, where the answer pleaded that it was given in part payment for a harvester, which was warranted to do good work, and that, subsequent to its execution, it was agreed between the parties that the note should remain until the next harvest, and that the harvester should be put in order to do good work, otherwise the note was to be returned and the contract of purchase rescinded, and alleged that the harvester was not put in order, and that the note was demanded by the defendant, which demand was not complied with, etc., the burden of proof is upon the defendant to prove the new matter alleged in the answer, and the contract pleaded in the answer is not admissible in evidence upon cross-examination of the plaintiffs; and it is error to grant a nonsuit because of mere proof of the contract, in the absence of proof either that the next harvest had not arrived, or that the plaintiffs had been given an opportunity to put the machine in order, and had failed to do so.</p> <p>Id.—Order of Proof—Cross-examination of Plaintiffs—Inadmissible Evidence for Defendant.—The defendant is not entitled to offe^proof of affirmative matter set up in his answer, until plaintiffs have made their case, and submitted it to the court; and proof of the execution of an agreement relied upon in-defense to a note in suit is not proper in cross-examination of the plaintiffs, and its admission in evidence, upon such cross-examination, is error.</p>