Opinion
Appeal from the Sixth Judicial District.
The plaintiff sued upon several promissory notes, made by the defendants, to the order of Youngs & Howell, and alleged in the complaint to have been indorsed by Youngs & Howell to the plaintiff.
The defendants, in their answer, denied the making of any such notes by them, and averred that the plaintiff was not the real owner of the notes, or the real party interested in the suit; that said notes were merely indorsed to the plaintiff for the purpose of collection. The defendants also plead payment, and denied that the notes were ever transferred to the plaintiff, and also denied that they ever were in partnership, and that the notes were given for partnership objects, uses or purposes. At the trial, the plaintiff offered to read in evidence the notes, together with the indorsements of them by the payees to the plaintiff. The defendants objected, because the indorsement of the notes to the plaintiff was denied by the answer, and the plaintiff had not proved the indorsement of said notes. But the Court overruled the objection, and the notes and indorsements were read in evidence. The defendants excepted, and judgment being rendered against them, they appealed.
COUNSEL
No briefs on file.
JUDGES: Mr. Ch. J. Murray delivered the opinion of the Court. Mr. J. Heydenfeldt concurred.
OPINION
MURRAY, Judge
It has been decided by this Court, that under the Act Regulating Proceedings in Civil Cases, a party is not required to deny the genuineness of an indorsement under oath. (Grogan v. Ruckle , 1 Cal. 158, 193.) Under the authority of that decision, which we feel no disposition to question or disturb, the Court below erred in admitting the notes in evidence without proof of their indorsement. It is, however, contended that the answer admits their indorsement.
The answer sets up several distinct causes of defense, and the appellant seems to have relied upon all of them in order to put the party to his proof, as he had a right to do under the statute, and was not concluded by one plea, so long as he had others which went to the whole action.
Judgment reversed with costs, and new trial ordered.