Frisch v. Caler
California Supreme Court
Appeal from the Fourth Judicial District. The complaint, which was verified, contains two counts—one for goods sold and delivered, and another upon a promissory note.
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Appeal from the Fourth Judicial District. The complaint, which was verified, contains two counts—one for goods sold and delivered, and another upon a promissory note. The latter, after stating that in consideration of an antecedent indebtedness the defendants executed to plaintiffs them promissory note for six hundred dollars, with interest, continues as follows: “ That said defendants, Feb. 25th, 1861, paid on said note three hundred dollars, and there is now due said plaintiffs from said defendants the said balance on said note, of three hundred dollars, and forty dollars interest,…
1Opinion of the CourtCope, J.
Norton, J. concurring.
The proceedings in this case were had during the existence of the statute requiring a replication to new matter set up in the answer. The action is based in part upon a promissory note, and the question is, whether a plea of payment is new matter in the sense of the statute. Hew matter is that which admits the facts alleged as the grounds of relief, but avoids them by introducing a new subject of controversy, operating as a defense. It is necessary in an action on a promissory note to allege that the note has not been paid; and the plea of payment does not admit the…
2Cited by37 opinions
- Cahill Bros., Inc. v. Clementina Co.California Court of Appeal · 1962
- Rancho Santa Margarita v. VailCalifornia Supreme Court · 1938
- Conkling v. . WeatherwaxNew York Court of Appeals · 1905
- Scott v. WoodCalifornia Supreme Court · 1889
- Penrose v. WinterCalifornia Supreme Court · 1901
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