Summary
In Liening v. Gould, 13 Cal. 598, the maker of the promissory note set up as a defense that the holder had agreed to extend the time of payment on payment of part of the note then due.
Summary of this case from Dean v. Sedan Milling Co.Opinion
Appeal from the County Court, Colusa County.
Suit in a Justice's Court by plaintiff, as Public Administrator, on a note of defendant to one Kurtz, deceased.
The complaint sets out the note, avers plaintiff to be administrator in fact of the estate of John Kurtz, deceased, and that defendant has promised to pay, etc.
Defendant answered by claiming that deceased had made him a gift of the note, had agreed to extend the time of payment to the fall of 1858, this suit having been brought in May, and plead a set-off of thirty-five dollars.
The Justice gave plaintiff judgment for the amount of the note and interest, less the thirty-five dollars. Defendant appealed to the County Court, where plaintiff had verdict and judgment for the whole note.
Defendant asked the Court to instruct the jury " as in case of nonsuit," because plaintiff had failed to make profert of his letters of administration. The Court refused, and defendant excepted. Defendant appeals.
COUNSEL:
No motion for new trial is necessary to enablethis Court to correct errors of law. (Brown v. Tolles , 7 Cal.)
L. Sanders, Jr., for Appellant, relied mainly on the want of profert of letters of administration, citing: 2 Chit. Pl. 24-36; 1 Chit. 358.
N. Greene Curtis & George Cadwalader, for Respondent.
There being no motion for new trial, this Court will not review the testimony. (Ingraham v. Gildermester , 2 Cal. 483.) Nor will it interfere with a verdict on conflicting testimony.
JUDGES: Baldwin, J. delivered the opinion of the Court. Terry, C. J. concurring.
OPINION
BALDWIN, Judge
The points of appellant are not well taken. Pleadings in Justices' Court are not held to much strictness. The complaint is substantially good. The plaintiff alleges that he is administrator in fact of the intestate. This is not denied in the answer. The failure to make the proof of the plaintiff's title to sue, therefore, was no ground for a nonsuit.
There was no consideration for the alleged agreement of extension; paying a part of a note was not enough when all was due.
The only matter in controversy really was as to the credit of the thirty-five dollars claimed by defendant, as to which the proof was somewhat conflicting.
We do not see that any statement appears so authenticated as to enable us to review the testimony, for there was no motion for a new trial; but we should not, under the circumstances, be disposed to interfere if a motion had been made for a new trial, and a proper statement settled.
Judgment affirmed.