Tusch v. Cummings — 1 Cal. Unrep. 782

Majority

p. 782

GEORGE TUSCH, Respondent, v. JAMES H. CUMMINGS, Appellant.

No. 3562;

July 15, 1873.

Headnote

Evidence. — A Matter Alleged in the Complaint and not Denied in the answer is not subject to disproof by evidence at the trial.

Partnership. — A Promissory Note Made to Two Persons, Co-partners, for a partnership demand, and assigned by one of them in the name of both, may be recovered upon at suit of the assignee or of his assignee.

APPEAL from Sixth Judicial District, Sacramento County.

R. C. Clark for respondent; Hall & Avery for appellant.

— The grounds principally relied upon for a reversal of the judgment are, that the court erred, first, in excluding the testimony of Wade, offered to show that the partnership between White and Wade had been dissolved before the assignment of the note to G. W. White; second, in finding that the plaintiff had acquired the interest of Wade in the note, and rendering a judgment for the plaintiff therefor.

On the first point it is sufficient to say that the complaint was verified, and not only alleged the partnership, but that

p. 783

it was an existing partnership at the commencement of the action. This allegation was not denied in the answer, and is therefore to he deemed admitted. The defendant has no right to controvert a fact admitted by the pleadings.

The partnership being admitted, and there having been sufficient proof that the note was executed to the two copartners for a partnership demand, and was assigned by one of them, in the name of both, to G-. W. White, by whom it was assigned to the plaintiff, the court properly held that the plaintiff had acquired the title, and was entitled to judgment for the whole amount due on the note.

We deem it unnecessary to notice the other points discussed by counsel.

Judgment affirmed and tbe remittitur to issue forthwith.

We concur: Belcher, J.; Niles, J.; Rhodes, J.