Gushee v. Leavitt — 5 Cal. 160

Majority

p. 160

HORACE GUSHEE, Respondent, v. JOSEPH S. LEAVITT, Appellant.

Headnote

In defense to an action on a promissory note it is not sufficient to plead in general terms want of consideration, and that the note was obtained by fraud. The answer should set out the circumstances under which the note was given, and, point out the facts which constitute the fraud.

It is not a good plea to allege that a note sued on is the property of another, and not of the plaintiff, without showing some substantial matter of defense against the one asserted to be the owner, and which could not be set up against the plaintiff.

Appeal from the Superior Court of San Francisco.

The facts material to the points decided will be found in the opinion of the Court.

B. S. Brooks, for Appellant.

Holladay, Saunders & Cary, for Respondent.

No briefs on file.

Murray, C. J., concurred.

In defense to an action on a promissory note, it is not sufficient to

p. 161

plead in general terms want of consideration, and that the note was obtained by fraud. The answer should set out the circumstances under which the note was given, and point out the facts which constitute the fraud.

Nor is it a good plea to allege that the note sued on is the property of another, and not of the plaintiff, without showing some substantial matter of defense against the one asserted to be the owner, and which could not be set up against the plaintiff.

Judgment affirmed.