Alden v. Carpenter

• Decision Date: 14 December 1883
• Parties: E. K. ALDEN, impleaded, etc., v. A. V. CARPENTER.
• Court: Colorado Supreme Court

1 P. 904

7 Colo. 87

E. K. ALDEN, impleaded, etc., v. A. V. CARPENTER.

Supreme Court of Colorado

December 14, 1883

In a suit on a promissory note, the averment of consideration is implied, and an affirmative allegation in the answer of want of consideration is merely a traverse of the complaint, and not new matter requiring a reply.

The refusal to continue a case on account of an absent witness where the party against whom the continuance is sought admits that the said witness will swear to the supposed testimony is within the discretion of the court, and it makes no difference that the judge has decided the evidence to be material.

The admission that an absent witness will swear to certain testimony does not admit the truth of such testimony, and evidence in rebuttal thereof may be offered.

In a suit on a promissory note, the averment of consideration is implied, and an affirmative allegation in the answer of want of consideration is merely a traverse of the complaint, and not new matter requiring a reply.

If the court, pending the consideration of a motion in one case should call up and decide another case of a different nature it is a matter of procedure in the discretion of the court, and not assignable as error, unless the judgment in the first case is affected thereby as to its fairness or verity.

Appeal from county court of Pueblo county.

John M. Waldron and T. T. Player, for appellant.

Patton & Urmy, for appellee.

STONE J.

Appellee brought suit against the appellant, E. K. Alden, and one A. L. Price, upon a promissory note, of which the following is a copy.

'$1,000.

PUEBLO, COLORADO, January 5, 1882.

'One month after date we jointly and severally promise to pay to the order of A. V. Carpenter one thousand dollars, without interest, at the Stockgrowers' National Bank, value received.

'ALDEN & PRICE.

'E. K. ALDEN.

'A. L. PRICE.'

The separate answer of Alden denies that he, or any authorized person for him, executed said note, and denies that the said note was executed and delivered to plaintiff by the defendants. The separate answer of Price alleges that the note was given without any good or valuable consideration whatever. Defendant Alden filed an affidavit for continuance on the ground of the absence of a certain witness by whom he expected to prove that said defendant alone 'authorized said Price to sign a note for the indebtedness to plaintiff, on the express condition that the said note should contain a provision for its renewal at the option of defendants at maturity, and that this provision was afterwards omitted from the note when executed by said Price as aforesaid, without said Alden's consent.' The motion for continuance was argued by counsel and taken under advisement by the court, and afterwards, when the court was about to announce its decision granting the continuance, the plaintiff offered to admit that the witness, if present, would swear to what was stated in the affidavit it was expected to be proved by him, whereupon, against the objection of defendant Alden, the court allowed the offer of plaintiff and denied the continuance. This ruling of the court was excepted to and it made one of the grounds of error, counsel for appellant objecting that the offer of appellee was not made in apt time. We see no error in this ruling of the court. Such offer is a privilege of the party against whom the continuance is sought, and the allowance of the offer as made is within the discretion of the court, and we see no good reason why such discretion may not be exercised as well after the court has decided that the evidence is material as when the motion is first made. It certainly would be unreasonable to expect that a party would admit the assumed testimony while he was at the same time contesting the insufficiency of the grounds for continuance. It is only when he knows that the continuance will otherwise be granted that such adverse party has any reason for admitting the supposed testimony sought.

The ruling of the court below, by the continuance, was in accordance with provisions of section 158 of the Civil Code practice.

Another point made by counsel for defendants is that the offer of plaintiff should have been to admit the truth of the supposed testimony, and not merely that the absent witness would swear to the same if present. For the same reason error is assigned to the ruling of the court in allowing plaintiff on the trial to introduce evidence contradicting the admitted testimony of the absent witness. There was no error in this. Admitting the testimony of an absent witness in order to avoid a continuance of the cause is not to be taken as an admission of the truth of such testimony. Nor does such admission preclude the party admitting it from rebutting the same on the trial. Boggs v. M. M. Co. 14 Cal. 358; Blankman v. Vallejo, 15 Cal. 639; O'Neil v. N.Y., etc., Co. 3 Nev. 141; State v. Geddis, 42 Iowa 264. The principal authority cited in support of this assignment is the case of Sup'rs, etc., v. M. & W. R. Co. 21 Ill. 368, where the court below had held that such admitted testimony was liable to contradiction; and the supreme court, in passing upon the question, say: 'We think on principle this view of the court was correct, as all parol testimony should be open to contradiction and to rebuttal; but this court having at a very early day ( Willis v. People, 1 Scam. 402) established a different rule, * * * adhered to up to this time, we do not feel justified in disturbing it.'

Another ground of error assigned is that since the plaintiff filed no reply to the separate answer of Price, averring want of consideration for the making of the note, this averment must be taken as admitted to be true, and that as such defense extended to both defendants, the plaintiff was not entitled to judgment. Two questions arise upon this assignment First, could the defendant Alden, who by his own plea had merely denied the execution of the note, claim the benefit of this separate plea of the defendant Price? Second, was this plea one which required a reply? As we think this last question must be answered in the negative, it is unnecessary to pass upon the first. In assumpsit, at common law, evidence of the want of consideration for the contract declared upon, was admissible under the general issue, and hence there was no necessity for the defendants pleading it specially. The practice, however, under which almost everything had come by degrees to be allowed as a defense under the general issue in actions of assumpsit and debt, was naturally changed by the rules of the English courts, known as the Hilary Term Rules, under the statute of 4 Wm. Iv., for the purpose of preventing an abuse by which the plaintiff was frequently misled as to the special defense intended to be relied upon under the general issue. ...