10 Cal. 372, Stewart v. Street & Co.

• Citation: 10 Cal. 372
• Opinion Judge: BALDWIN, Judge
• Party Name: STEWART v. STREET & CO.
• Attorney: Barber, for Appellants. L. Quint, for Respondents.
• Judge Panel: JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., and Field, J., concurring.
• Case Date: October 01, 1858
• Court: California Supreme Court

Page 372

10 Cal. 372

STEWART

v.

STREET & CO.

Supreme Court of California

October, 1858

Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.

This was an action brought on three several promissory notes, of $ 115.68 each. They are all in the same form, which is as follows:

" Sullivan's Creek and Tuolumne River Water Co., " $ 115 68-100. Shaw's Flat, September 16th, 1854.

" The undersigned promise to pay J. S. Stewart, or bearer, one hundred and fifteen 68-100 dollars, in monthly pro rata installments, out of the first net proceeds from sale of water.

" No. 18. J. Street & Co. Proprietors."

The complaint, after setting out the notes and the averment of the amount due thereon, alleges that defendants turned off the water from the ditch that was in operation and conveying water to various mining localities in Tuolumne County, at the time said instruments of writings were executed, and that the quantity of water was thereby greatly diminished, etc. The complaint was verified.

To this complaint, the defendants answered by admitting the making of the several instruments, and " denied, to the best of their knowledge, information and belief, all and singular the other allegations in said complaint."

The cause was tried before a jury--a verdict was rendered for plaintiff, and judgment entered thereon. Defendants appealed.

The record contains no statement on appeal.

COUNSEL:

Barber, for Appellants.

L. Quint, for Respondents.

JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., and Field, J., concurring.

OPINION

BALDWIN, Judge

Page 373

The defendants are in no condition to avail themselves of the points made in their briefs, if, indeed, there is anything in them. In the first place, there seems to be no statement. In the second, the allegations of the complaint are not specifically denied; and, in the third place, we think that the only point seriously urged by the appellants--the want of consideration in the paper sued upon--is unfounded, because whatever the rule may be at common law, the statute (Wood's Dig. 75, 81,) makes such an instrument as that sued on prima facie evidence of indebtedness, though no consideration be expressed therein.

Judgment affirmed.