Low v. Warden

Citations

• 70 Cal. 19
• 11 P. 350
• 1886 Cal. LEXIS 713

Syllabus

<p>Promissory Note—Action on—Proof of Indorsement—Practice— Opening Case after Resting—Nonsuit. — The action was brought on a promissory note by an indorsee. The complaint alleged the execution of the note, its assignment to the plaintiff by the payee, and that he was the owner and holder thereof. The answer admitted the execution of the note, but denied every other allegation of the complaint. On the trial the plaintiff offered the note in evidence, proved that no part of it had been paid, and rested without any proof of the indorsement. The defendant then moved for a nonsuit on the ground that there was no proof of the indorsement. The plaintiff’s counsel contended that no such proof was necessary, but upon an intimation of the court to the contrary, asked leave to open the case and introduce evidence of the indorsement. This the court refused to allow, and granted the motion for nonsuit. The nonsuit, if allowed to stand, would have compelled the plaintiff to bring a new action, to which the statute of limitations would be a bar. Held, that under the circumstances the rulings of the court were erroneous.</p>