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ited to the purpose for which it is adopted. 4. LIMITATION OF ACTIONS - ACKNOWLEDGThe following cases are of similar effect: MENT OF DEBT-SUFFICIENCY. Riley v. Brooklyn, 46 N. Y. 41; Hopkins v.

An instrument reciting that a debtor is

desirous to extend a mortgage, and that it is Rogers, 11 Tenn. 457.

renewed for a specified time, signed by the debtThere is nothing in the cases referred to in or, is an acknowledgment of the debt, and operthe prevailing opinion upon this subject. In

ates to start a new period of limitation, within

Code Civ. Proc. $ 300, providing that no acall of those cases it was assumed without

knowledgment is sufficient evidence of a new argument that the matter contained in the contract, unless the same is contained in some specifications, whether referring to the man

writing signed by the party to be charged. ner of doing the work, or to the materials

[Ed. Note.-For cases in point, sce Cent. Dig.

vol. 33, Limitation of Actions, § 601.] therefor, or not, were a part of the proceed

OF

5. PRINCIPAL AND AGENT - AUTHORITY ings or contracts in the particular case. It

AGENT — POWER OF ATTORNEY – CONSTRUCdoes not appear that the proposition that the

TION, references did not include the specifications e power of attorney, authorizing the granfor the purposes of incorporating the foreign

tee therein to prosecute every kind of business clauses in the contract or proceeding was

and for and in the name of the grantor execute:

and deliver agreements, mortgages, notes, etc., brought to the attention of the court.

empowers the grantee to execute for the grantor clauses quoted in the prevailing opinion con

an instrument renewing a mortgage executad stitute no part of the contract entered into by

by the grantor and the note thereby secured.

Ed. Note.-For cases in point, see Cent. Dig. the contractor, nor of the proceeding upon

vol. 40, Principal aud Agent, $ 364.] which it was based. They did not refer in

6. SAME. any respect to the manner of doing the work.

A payee of a note secured by a mortgage the plan by which it was to be constructed, may, after the transfer of the note and mortor the quality or character of the materials. gage, act as an agent of the maker to renew It cannot be presumed that they would have

the note and mortgage, since, under Civ. Code

$ 3116, the maker is bound to pay the debt, and any effect whatever upon the various bidders the payee is liable only to the subsequent holder. who may have intended to bid upon the work. [Ed. Note.-For cases in point, see Cent. Dig. These clauses are not in fact incorporated, vol. 40, Principal and Agent, $ 465.] either in the proceedings referred to or in the 7. SAME-ACT OF AGENT- LIABILITY OF Prixcontract. They could only become a part CIPAL. thereof by reason of the reference, and as the

A payee of a note secured by a mortgage reference was not made for that purpose, but

transferred the note and mortgage. The maker

subsequently executed a power of attorney ausolely to describe the work and materials thorizing the payee to renew the mortgage. The they were entirely foreign to the case, and payee executed in the name of the maker an could have no effect upon the validity of the

instrument renewing the mortgage for a speci

fied period. II cld, that the renewal of the mortassessment.

gage was binding on the maker only, under Civ.

Code, $ 2343, holding an agent liable only when I concur: LORIGAN, J.

he enters into a contract in the name of his principal without having authority so to do, etc.

8. MORTGAGES — FORECLOSURE EVIDENCE (151 Cal. 723)

PRESUMPTIONS. MOORE v. GOULD et al. (L. A. 1,790.)

Under Code Civ. Proc. $ 1962, subd. 2, (Supreme Court of California. Aug. 19, 1907.)

providing that facts recited in an instrument

shall be conclusively presumed to be true as 1. BILLS AND

AND NOTES-CONSIDERATION-PRE between the parties, a recital in a mortgage is SUMPTIONS.

conclusively presumed to be true as between the A presumption of consideration for a note parties thereto. and mortgage securing it arises from the note [Ed. Note.-For cases in point, see Cent. Dig. and mortgage.

vol. 3), Mortgages, $ 211; vol. 16, Deeds, $ 250; [Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Estoppel, $$ 41-45.] vol. 7, Bills and Notes, & 1652.]

9. MORTGAGES-CONSTRUCTION-TIME OF PAY2. EVIDENCE - PRESUMPTIONS - CONFLICTING

JENT. EVIDENCE.

A payee of a note secured by a mortgage In an action to foreclose a mortgage secur transferred the note and mortgage, and thereing a note, the testimony that there was no after executed to the transferee a mortgage, consideration for the note was not contradicted, which set out the note and recited that the paybut it had in itself inherent elements of improb ment thereof had been extended, and which statability. Held, that in view of a presumption of ed that the payee promised to pay the note consideration arising from the note and mort

according to the terms and conditions thereof. gage, which under Code Civ. Proc. § 2061, subd. II eld, that the mortgage executed by the payee 2, is evidence, there was a conflict in the evi contained a promise by the payee to pay the lence on the issue of consideration sufficient to note as extended, and an action commencer support a finding of consideration.

within four years thereafter was not barred, [Ed. Note.-For cases in point, see Cent. Dig. under Code Civ. Proc. $ 337, limiting actions vol. 7, Bills and Notes, $$ 1816, 1819.)

on obligations founded on instruments in writ3. MORTGAGES-EXTENSION OF TIME OF PAY

ing to four years. MENT.

10. SET-OFF AND COUNTERCLAIM-CROSS-DEAn instrument reciting that a debtor is MANDS-AVAILABILITY-SECURED CLAIMS. desirous of extending the loan, and declaring In a suit under Code Civ. Proc. $ 726, to that a. mortgage, together with the note and foreclose a mortgage, a claim for services and debt secured thereby, is renewed for a specified for goods solds is not available as a cross-demand period, and signed by the debtor, is a renewal under section 440, providing that, when crossof the note and mortgage, within Civ. Code, $ demands have existed between persons inder 2922, providing that a mortgage can be renewed such circumstances that if one had brought an only by writing, etc.

action against the other a counterclaim could

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have been set up, the two demands shall be R. Moore and to plaintiff, as niortgagees, a deemed compensated.

mortgage of certain real property in Los [Ed. Vote.-For cases in point, see Cent. Dig.

Angeles county, which mortgage stated that vol. 43, Set-Off and Counterclaim, $ 70.]

it was made as security for the payment of 11. SAME-DEMANDS BARRED BY LIMITATIONS.

the Peterson note of $700, as well as the $550 l'nder Code Civ. Proc. § 438, subd. 2, providing that in an action on contract any other note. In said mortgage the mortgagors furcause of action arising on contract and existing thermore promised to pay the $700 note acat the commencement of the action may be set cording to the terms and conditions thereof. up as a counterclaim, a demand barred by limi. tations is not available as a counterclaim.

The mortgagee P. R. Moore died, and the [Ed. Yote.For cases in point, see Cent. Dig.

$550 note and the mortgage executed convol. 43, Set-Off and Counterclaim, & 41.]

temporaneously with it passed to the plaintiff 12. SAME.

by virtue of the decree of distribution in his Under Code Civ. Proc. § 438, subd. 2, pro estate. Other facts will be stated in connecviding that in an action on contract any other tion with the various points made by apcause of action arising on contract and existing at the commencement of the action may be pellants. set up as a counterclaim, and section 1500, pro 1. The answers of the appellants allege viding that no holder of a claim against an that there was no consideration for the second estate shall maintain any action thereon unless the claim is presented to the executor or ad

note and mortgage, and that said note and ministrator, a demand against an estate of a

mortgage had been executed upon the agreedecedent not presented to his representative is ment with the mortgagee P. R. Moore that not available as a counterclaim in an action by the sum of $550 should be applied and creditthe representative. 13. PLEADING – DEMURRABLE PLEADING

ed as a partial payment on the $700 note and STRIKING OUT.

mortgage. The court found against these Where a demurrer to pleadings should have allegations. The defendants Will D. Gould been interposed and sustained, there was no and Mary L. Gould gave testimony that there prejudicial error in striking out the pleadings, or in refusing to receive evidence in support

had been an agreement, as averred in the of their allegations.

answers, between them and P. R. Moore. [Ed. Note.-For cases in point, see Cent. Dig This testimony was not directly denied, as, vol. 3, Appeal and Error, $ 4110.]

indeed, it could not be; the other active party Beatty, C. J., and Lorigan, J., dissenting in to the transaction, P. R. Moore, being dead. part.

But the claim of these defendants had in it

self inherent elements of improbability. The In Bank. Appeal from Superior Court,

theory that the second note and mortgage Los Angeles County; Frank F. Oster, Judge.

were given to reduce the amount due upon Action by Rebecca W. Moore against Will

the first note is not readily reconcilable with D. Gould and others. From a judgment for

the form of the mortgage itself, which deplaintiff, defendants appeal. Affirmed.

clares that it is given to secure both notes, James H. Blanchard, William E. Cox, and and that the mortgagors undertake to pay Will D. Gould, for appellants. Miller & both. As to the plea of want of consideraPage, for respondent.

tion, a presumption of consideration arises

from the writing itself. Such presumption SLOSS, J. This is an action on two prom is itself evidence. Code Civ. Proc. $ 2061, issory notes, secured by two mortgages of subd. 2. There is thus raised a conflict, real estate and by a pledge of stock of a cor which is sufficient to support the finding of poration. Plaintiff had judgment of fore the court. People v. Milner, 122 Cal. 171, closure, and the defendants, Will D. Gould, 54 Pac. 833; Sarraille v. Calmon, 142 Cal. Mary L. Gould, Samuel Peterson, and James 051, 76 Pac. 497; Adams v. Hopkins, 144 Cal. H. Blanchard, appeal from the judgment and 19, 36, 77 Pac. 712. from an order denying their motion for a 2. The statute of limitations (Code Civ. new trial.

Proc. § 337) is set up as a defense to both On July 18, 1892, the defendant Peterson notes. The finding of the court is against executed to the defendant Will D. Gould a this plea. The $350 note was payable July note for $700, payable on or before one year 18, 1899. The complaint was filed February after date, and at the same time executed 27, 1903, less than four years after the maand delivered to said Gould a mortgage of turity of the note. As to this note, therefore, certain real property in the county of Los it is plain that the bar of the statute had Angeles to secure the said note. On the 28th not attached. As to the $700 note, which by day of September, 1892, Will D. Gould as its terms fell due July 18, 1893, the complaint signed and transferred the said note and alleges, and the court found, that on the mortgage to plaintiff, and at the same time 28th day of June, 1897, the defendant Peterindorsed the note to the order of plaintiff. son and the defendant Will D. Gould in writ. On June 28, 1897, the defendants Will D. ing extended the time of maturity and payGould and Mary L. Gould, his wife, made, ment until the 28th day of June, 1899, and executed, and delivered to the order of P. that on the 25th day of May, 1900, the said R. Moore, the husband of plaintiff, a promis defendants similarly extended the time of sory note in the sum of $550, payable on or payment of said note until the 18th day of before July 18, 1899. Together with their July, 1902. It appears that on July 18, 1892, note, they executed and delivered to said P. the defendant l'eterson had executed a power

of attorney to Will D. Gould. On June 23, receipts, eridences of debt, releases and satis1897, Gould, acting as attorney in fact of faction of mortgage, judgment, and other Peterson, executed an instrument in writing debts, and such other instruments in writing reading as follows: "Know all men by these of whatever kind and nature as may be necespresents, that Samuel Peterson, being de sary or proper in the premises." This power sirous of extending the loan and in considera authorized the execution by Gould of the tion of the same being extended, does hereby two instruments in question. The purpose certify and declare that a certain mortgage, and effect of a power of attorney of this kind together with the promissory note and debt is to rest in the attorney full authority to secured thereby, bearing date the 18th day transact any and all kinds of business for of July, 1892 (describing the mortgage the principal. Every phrase in it, defining first set out in the complaint), is hereby re the authority of the attorney, is in broad and newed and extended for the further term unrestricted terms, and such terms are to of two (2) years from this date, provided that be given an interpretation in harmony with this agreement shall not affect or impair any the scope and purpose of the instrument, other covenant or condition in said promis read as a whole. It is true that, where a sory note or mortgage contained, but that power is given for a limited or specific purthey shall remain in as full force and effect as pose, general words following the declaraif this agreement had not been made. In tion of the particular purpose are to be limitwitness whereof, the said Samuel Peterson, ed to such acts as may be necessary to acby Will D. Gould, his attorney in fact, has complish such particular purpose. Washburn hereunto set his hand and seal this 28th day V. Alden, 5 Cal. 463; Billings v. Morrow, 7 of June, in the year of our Lord one thou Cal. 171, 68 Am. Dec. 233; 1 Am. & Eng. sand eight hundred and ninety-seven. Samuel Ency. of Law (20 Ed.) 1000. But this rule Peterson [Seal], by Will D. Gould, His At has no application to such an instrument as torney in Fact." On May 25, 1900, Gould, the one now under consideration. Nowhere as attorney in fact, executed a similar in in this power of attorney is there any lanstrument purporting to renew and extend the guage limiting the scope of the business note and mortgage to the 18th day of July, which may be performed by the attorney, 1902.

and the generality of the terms employed Each of these instruments constituted a clearly includes authority to execute the inrenewal of the note and mortgage within struments of renewal. Ward v. Kentucky section 2922, Civ. Code. German S. & L. Soc. Bank, 7 T. B. Mon. 93, citeil by appellants, v. Hutchinson, 63 Cal. 52, 8 Pac. 627; London, is not in point. The power of attorney there etc., Bank v. Bandmann, 120 Cal. 220, 221, considered was closely limited in its terms. 52 Pac. 583, 6J Am. St. Rep. 179; Seaton v.

Furthermore, the act of the agent was not Fiske, 128 Cal. 519, 61 Pac. 666. Further similar to that of Gould in this case. more, each of them contained an acknowledg It is urged that Gould, by reason of his ment of the debt, and thus operated to start position as payee of the $700 note, could a new period of limitation. Code Civ. Proc. not act as Peterson's agent to renew the note. § 360 ; Concannon v. Smith, 134 Cal. 14, 66 This position would have much force if Pac. 40; Dearborn v. Grand Lorge, 138 Cal. Gould at the time of executing the instru6.33, 72 Pac. 154. In either aspect these writ ments of renewal or "extension" (as they are ings were sufficient to take the case out of termed in the record) had still been the holdlthe oferation of the statute of limitations er of the note and mortgage. Wolford v. so far as the defendant Peterson is concerneil, Cook. 71 linn. 77, 73 X. W 701, 70 Am. St. if Gould gas authorized to execute them as Rep. 31.). Ilis disability in such case would Peterson's agent and in his behalf. Whether have rested on the rule that one who arts or not he was so authorized depends upon a in a fiduciary capacity cannot be permitted consideration of the terms of the power of to deal with himself in his individual (aattorney. This instrument was in the form pacity. Davis v. Rock Creek Co., JJ Cal. in common use in this state and usually de 339, 30 Am. Rep. +0; Sterling v. Smith, 97 scribed as that of a "general power of attor Cal. 343, 32 Pac. 320. The interest of his ney."

It authorized Gould, in the name of principal would have been adverse to his Peterson, and for his use and benefit, to per own. Here, however, Gould had already form any of a great variety of arts set forth transferred the note and mortgage. Acting in the instrument. These acts include almost for Peterson, he was dealing, not with himevery conceivable mode of dealing with real self, but with the plaintiff. Even if the reand personal, tangible and intangible, prop newal might have resulted in his release as erty, and their enumeration is followed by indorser or guarantor, such release could these words: “And to make, do, and trans have operated only to the disadvantage of act all and every kind of business of what plaintiff, not to that of l'eterson. Peterson's nature and kind soever, and also for me and liability as maker was primary; that of in my name, and as my art and deed, to Goull merely secondary. Peterson was at sign, seal, execute, deliver, and acknowlevige all times bound to pay the note, and was suh deeds, covenants, indentures, agreements, ! not entitled to recourse against Gould, who mortgages, hypothecations, bottomries, char. I was liable only to subsequent holders. Civ. ter parties, bills of lading, bills, bonds, notes, Code, 8 3116. The action was therefore comi

menced in time as against the defendant Whether or not such matter was properly Peterson; and this without regard to the al denominated a "counterclaim," the plea of legation and finding of his absence from the payment was undoubtedly one that the destate (Code Civ. Proc. $ 351) for periods fendants had a right to make. But the orsufficient to prevent the statute of limitation der striking out was not prejudicial to tbe apfrom running in his favor.

pellants, since the answer had, in another Whether the action on the $700 liability place, affirmatively alleged payment in full. was barred as to the defendants Will D. and The remaining counterclaims alleged indebtMary L. Gould depends on different consid edness from P. R. Moore to the defendant erations. The two instruments executed by Will D. Gould for services rendered by the Gould as attorney in fact for Peterson could latter as an attorney at law in various mathave no effect as against any person other ters not connected with this litigation, and than Peterson. In executing them Gould for hay and other personal property delivered was assuming to act, not in his individual by said Gould to P. R. Moore. It appeared capacity, but only as agent for Peterson. upon the face of said counterclaims that Since the acts were lawful, and within the each of the causes of action therein set forth scope of his authority, the principal only, would, if made the basis of an independent and not the agent, was bound by them. Civ. action, have been barred by the statute of Code, $ 2343. The evidence, therefore, did limitations. The grounds of the motion to not support the finding that Gould extended strike out were that said claims were so the maturity of the $700 note. But the barred, and that they had not been presented mortgage of June 28, 1897, in which the for allowance to the personal representative Goulds undertook to pay both notes, contains of P. R. Moore, deceased, in the course of the the following provisions. It declares that proceedings for the settlement of his estate. the mortgagors mortgage certain real prop Either ground afforded sufficient reason for erty as security for the payment of the two the granting of the motion, unless these notes, which are set out in full. Following counterclaims are to be treated as partial the copy of the $700 note signed by Peterson, payments of the mortgage debt, compensatthe mortgage reads as follows: "Said last ing it pro tanto, under the provisions of secnote of $700 is secured by mortgage,

* * * tion 440 of the Code of Civil Procedure. and time of payment of said note has been That section provides that, "when cross-deextended to July 18, 1899. And the mort mands have existed between persons under gagors promise to pay said notes accord such circumstances that, if one had brought ing to the terms and conditions thereof. an action against the other, a counterclaim Here is a direct promise to pay

could have been set up, the two demands the note, following a recital that the time of shall be deemed compensated, so far as they payment has been extended to July 18, 1899. equal each other, and neither can be deprivThis recital is, as between the parties to the

ed of the benefit thereof by the assignment mortgage, conclusively presumed to be true. or death of the other." Code Civ. Proc. $ 1962, subd. 2. In promising Is this a case of cross-demands which may to pay the note "according to its terms and be mutually compensated, under this section? conditions," the mortgagors must be taken to We think not. The plaintiff was suing on have referred to the terms and conditions, an indebtedness secured by mortgage, an innot merely as they appeared on the face of debtedness which could be recovered only by the note itself, but with such modifications means of the action of foreclosure prescribed as had been recited. To hold otherwise by section 726 of the Code of Civil Prowould require us to construe their promise as cedure. In such action the mortgaged preman agreement to perform an impossibility; ises must first be applied to the satisfaction i, e., to pay money at a date already past. of the debt, and there is no personal liability If the proinise to pay was not intended to on the part of the mortgagor unless the be a promise to pay at the date to which security shall prove insufficient to satisfy payment had, as recited, been extended, it is the debt. The land is made primarily liable difficult to see why the recital of extension for the payment of the obligation, and the should have been inserted at all. Construing mortgagor can be called on to pay only the langunge as importing a promise to pay where the proceeds of a sale of the land are the $700 note on July 18, 1899, the action, insufficient. Bartlett v. Cottle, 63 Cal. 366; commenced on February 17, 1903, was not Biddel v. Brizzolara, 64 Cal. 354, 30 Pac. 609: barred by section 337 of the Code of Civil Crisman v. Lanterman, 87 Pac. 89, 149 Cal. Procedure. Under this view, the finding of 617. For this reason it has been held that in an an extension by Gould becomes immaterial. action upon a simple contract debt (a bank

3. The answer of the Goulds and Blanch deposit) the defendant cannot set off against ard set up eight separate "cross-demands and such debt a liability of the plaintiff secured counterclaims.” At the trial the plaintiff

At the trial the plaintiff by mortgage. McKean v. German-American moved to strike them out, and the court Sav. Bank, 118 Cal. 334, 50 Pac. 656. The two granted the motion as to all but one. This claims, said the court, could not be deemed ruling is assigned as error. Two of the compensated under section 440, because "the counterclaims stricken out set up payments action of respondent for the deposit, and the on account of the indebtedness sued on. right of action of appellant to foreclose its

mortgage, are not cross-demands as contemplated by that section." In that case the action was brought by the holder of the unsecured indebtedness, and the defendant sought to set up a debt secured by mortgage. Here the plaintiff sues on the mortgage, while the defendant relies on a simple debt as a cross-demand. But this difference does not make the principle of the McKean Case any less applicable here. If the demands, at their inception, were of such a nature that they were compensated, such compensation affected both parties alike. The rights of the parties under section 410 are necessarily mutual. One claim could not be compensated, without the other being compensated to the same extent. If the existence of the mortgage debt in favor of plaintiff was not available to reduce the amount of Gould's claims, his claims had no greater effect in discharging the mortgage debt.

The alleged cross-demands not being such as could be pleaded as an extinguishment of plaintiff's claim under section 440, they can be supported, if at all, only as counterclaims under subdivision 2 of section 438. As such they failed to state a ground of counterclaim, because (1) they were barred by the statute of limitations (Lyon v. Petty, 65 Cal. 325, 4 Pac. 103); and (2) they had not been presented to the executor or administrator of P. R. Moore's estate (Code Cir. Proc. $ 1500). While it might have been better practice to demur to these pleadings, there was, therefore, no prejudicial error in the order striking them out, or in the refusal of the court to receive evidence in their support.

The foregoing discussion deals with all the points presented and argued by appellants in their brief.

The judgment and order appealed from are affirmed.

2. EVIDENCE-PAROL EVIDENCE-VARYIXG INDORSEMENT OF VOTE.

In the absence of fraud or mistake, it cannot be shown by oral evidence that an indorsement in terms "with recourse" was intended by the parties as one "without recourse.”

[Ed. Note.For cases in point, see Cent. Dig. vol. 20, Evidence, $ 1799.] 3. BILLS AND NOTES--CONSTRUCTION TERMS OF PAYMENT.

A note for $900 provided for payment of that sum six months after date, with interest at 142 per cent. per month, payable monthly, and that, should interest not be paid when due. it should become part of the principal, and bear interest, or at the option of the holder of the note the whole principal and interest should become immediately due and payable, and concluded: "Principal and interest payable in gold *** in sums of $2.5 or more monthly, together with interest monthly.” Held, that the provision as to payment of $2.5 or more monthĪy was merely an option to the makers to make partial payments of principal in advance of maturity of the note, and did not limit their obligation to pay interest monthly, or destroy the holder's right to declare the entire sum due in case of default in interest. 4. SAME - INDORSEMENT — DEMAND FOR PAYMENT.

Under the provision in a note that, in case of default in payment of an installment of interest when due, the whole sum of principal and interest shall become immediately due and payable at the option of the holder of the note, the hoider has a reasonable time as against the indorser of the note, as well as its maker, to exercise the option, at least for the purpose of making the indorser liable for the principal and interest accruing after exercise of the option.

[Ed. Note.-For cases in point, see Cent. Dis. vol. 7, Bills and Notes, $ 1327.] 5. SAJE - ACTIONS - PRESENTMENT FOR PAY. MENT-PLEADING.

The complaint against the indorser of a note, alleging presentment of it for payment at the place where the maker had her place of business and residence at the time of her death, and that payment on behalf of her was refused, is not demurrable on the ground of uncertainty, because not showing to whom the demand was delivered ; this being a matter of evidence. 6. SAME.

Where the complaint in an action on a note alleges the place where demand of payment on behalf of the deceased maker was made, but not the person to whom demand was delivered, defendant, on proof of the person being made, being without evidence to meet it and desiring time. therefor, should ask for a continuance. 7. SAME-ACTION AGAINST INDORSERS-PRIOR RESORT TO MORTGAGE.

Though the makers of a note give a mortgage to secure it, an indorser may be sued on the note without prior resort to the mortgage.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, $ 605.] 8. SAME-ACTION AGAINST GUARANTOR-PRIOR RESORT TO MORTGAGE.

A guarantor of payment of a note may bo sued thereon, without prior resort to the mortgage security given by the makers.

[Ed. Note.For cases in point, see Cent. Dig. vol. 7, Bills and Notes, $ 605.]

We concur: SHAW, J.; HENSHAW, J.; MCFARLAND, J.; ANGELLOTTI, J.

I dissent from the judginent, and from that part of the opinion of the court which holds that cross-demands of a mortgagor against the mortgagee are not within the protection of section 440, Code of Civil Procedure: BEATTY, C. J.

I concur: LORIGAX, J.

(131 Cal. 754)

KINSEL V. BALLOU. (L. A. 1,962.) (Supreme Court of California. Aug. 20, 1907.) 1. PLEADING — FAILURE TO DENY ALLEGATIONS-EFFECT.

Defendant may not attack the finding of the giving of a notice, the complaint having alleged the giving of such notice, and the answer not having denied it.

[Ed. Yote.-For cases in point, see Cent, Dig. vol. 39, Pleading, § 1228.]

In Bank. Appeal from Superior Court, Los Angeles County; W. P. James, Judge.

Action by E. F. Kinsel against L. M. Bal. lou. Judgment for plaintiff. Defendant alpeals. Affirmed.

Tanner, Taft & O'Dell, for appellant. H. R. Hervey and W. W. Butler, for respondent.

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