Moran v. Abbey

Citations

• 58 Cal. 163

Syllabus

<p>Demurrer—Waiver—Presumption.—Where the defendants, after a demurrer to the complaint—which does not appear from the record to have been disposed of—answer to the merits, the presumption is that the demurrer has been waived or overruled.</p> <p>Promissory Note—Payment—Evidence.—A. and H. made their promissory-note—of date December 20th, 1875—payable to the order of the payee one year after date at the banking house of R. S. & Co. After the maturity of the note—upon the suggestion of A. that the note was bearing good interest, and that the plaintiff should take it out of bank and hold it for himself—the plaintiff, without suing the owner of the note or having any negotiations with him, went to the bank where the note had been left for collection, paid to the agent the amount, and recovered from him the note unindorsed; but more than two years afterwards, upon being advised by his lawyer that an indorsement was necessary, procured the indorsement of the payee “without recourse,” and brought this action. Upon the trial—the plaintiff being on the stand—the defendant offered .to show by the witness, ‘ ‘ that, through a large course of dealings between M., the plaintiff, and A., M., without having consulted with H. (the payee), takes A. ’s money to the bank and pays the note; and that he held at that time all the property of A. in his hand, and that the payment on that occasion, though nominally made by M., was in fact made by A., growing out of the nature of the transactions of the parties;” and the offer was rejected on the ground that the evidence was irrelevant and immaterial.</p> <p>Held: The circumstances offered to be proved, in connection with the circumstances attending the transaction with the bank, would have tended to prove payment of the note by the plaintiff for A., and at his request, and the court erred in rejecting the evidence.</p> <p>Evidence—Relevant—Definition.—The meaning of the word relevant, as applied to testimony, is that it directly touches up