OSCAR F. MORRILL v. GEORGE P. MORRILL, and OSCAR F. MORRILL v. GEORGE P. MORRILL, 26 Cal. 288

By the Court, Sanderson, C. J. These are actions upon promissory notes by an indorsee against the maker. The pleadings and facts are the same in both. The complaint in each alleges that the note was assigned to the plaintiff for a valuable consideration before maturity. Three answers were filed by the defendant, respectively denominated “ Answer,” “ Supplemental Answer,” and “ Further Answer.” The first attempts to put the assignment only in issue. The second alleges that the money due on the note has been attached in the hands of the defendant at the suit of a third party.

The third pleads payment to plaintiff’s assignor prior to the assignment. The second answer seems to have been abandoned at the trial. The first answer was filed on the 11th of September, 1863, and the last on the 5th of November thereafter. The notes were dated on the 1st of January, 1862, one due four and the other six months after date.

On the 8th of February, 1862, the plaintiff’s assignor sold to defendant a large amount of merchandise and other property, notes and debts due and owing, and gave him a bill of sale thereof, in which the property, notes, etc., are particularly described, until we come to the last item, which is in the following words : “ All other debts, notes and accounts, of whatever nature, due me, and the good will of the business, for the sum of $3,000.” On the trial the defendant offered in evidence this bill of sale in support of the plea of payment contained in his third answer.

It was excluded by the Court, which ruling is the only error assigned. If. the notes were assigned before maturity, as alleged in the complaints, payments to the assignor would be no defense to an action by the assignee, unless it was made before the assignment and the assignee took with notice, which is not pretended in this case; and it is insisted by the respondent that his allegation respecting the assignments is not sufficiently denied by the answers, and is therefore admitted, and we are of the opinion that such is the case.

The denial is in these words: “ That he denies that the promissory note mentioned in said complaint was for a valuable consideration indorsed and delivered by C. Morrill to plaintiff before its maturity or at any other time.” This denial does not put in issue the fact that the note was assigned before maturity. If it puts anything in issue it is only the fact that the assignment was made for a valuable consideration, and not the fact that it was ■made before maturity. (Burke v.

Table Mountain Water Company, 12 Cal. 407.) The pleadings being verified, and the assignment before maturity not specifically denied, it must be taken as admitted for the purposes of the trial. And being admitted, the defense of payment to the plaintiff’s assignor fails, for it is not alleged or pretended that the plaintiff took the notes with notice of such payment. Admitting, then, that the bill of sale amounts to proof of the alleged payment, its rejection by the Court was right, for the payment in view of the admission of the assignment before maturity constituted no defense.

But independent of what has been said, the bill of sale was properly excluded, for the reason that, in our judgment, it neither proves nor tends to prove the payment alleged. The bill of sale is thus headed: “ Mr. Geo. P. Morrill bought of C. Morrill, wholesale druggist.” Then follows a particular description of the property, notes, accounts and debts sold and transferred, with the prices annexed, until we come to the last item, bio mention is made of these notes, nor were they delivered up. The language is that of bargain and sale, and not of discharge and satisfaction.

The holder does not sell the maker his note, nor does the latter buy it; he pays it, and the transaction is not described by words of bargain and sale. If there was any doubt upon the question whether the parties to this bill of sale intended to include in the transaction which it describes the satisfaction and payment of these notes, it would be effectually removed by an examination of the sworn answer of the defendant first filed in the case, in which is found the following language: “ And defendant, further answering said complaint, says that the said C.

Morrill” (plaintiff’s assignor, and the person to whom the pretended ■ payment is alleged to have been made in the last answer filed) “ though the owner and holder of said note, and entitled to receive the payment thereof, fraudulently caused Oscar T. Morrill to be made the plaintiff herein.” The defendant does not here pretend that the notes have ever been paid to C. Morrill, but admits that they are due and payable to him but not to his assignee, the plaintiff. The latitudinous scope of the bill of sale in question was not discovered at the time the first answer was filed, nor the second.

It was, however, discovered in time for the third and last. It is but just to the defendant to state that the last answers were not verified by him. There is a glaring inconsistency between the first and last; and the last was verified by an agent for the reason that the defendant was absent from the State. Judgments affirmed.