Sapp v. Lifrand

• Decision Date: 22 October 1934
• Docket Number: Civil 3452
• Citation: 44 Ariz. 321,36 P.2d 794
• Parties: SIDNEY SAPP, as Administrator of the Estate of E. Y. MALICH, Deceased, Substituted for and in Place of I. MALICH, B. MALICH and MAMIE LEVY, Appellant, v. ANNIE LIFRAND, Appellee
• Court: Arizona Supreme Court

36 P.2d 794

44 Ariz. 321

SIDNEY SAPP, as Administrator of the Estate of E. Y. MALICH, Deceased, Substituted for and in Place of I. MALICH, B. MALICH and MAMIE LEVY, Appellant, v. ANNIE LIFRAND, Appellee

Civil No. 3452

Supreme Court of Arizona

October 22, 1934

APPEAL from a judgment of the Superior Court of the County of Navajo. P. A. Sawyer, Judge. Judgment reversed and cause remanded for new trial.

Mr. Guy Axline, for Appellant.

Mr. W Dean Nutting, for Appellee.

OPINION

LOCKWOOD, J.

Annie Lifrand, hereinafter called plaintiff, brought suit against Bazell Motor Company, a corporation, and various individuals hereinafter called defendants, on a promissory note given by the defendants to E. Y. Malich and by him assigned to plaintiff. The not was secured by a realty mortgage, and plaintiff asked for the usual foreclosure decree thereon. After the filing of the suit, Sidney Sapp the duly appointed, qualified and acting administrator of the estate of E. Y. Malich, was by the court allowed to file a complaint in intervention. The gist of this complaint was that Malich, at the time he made the assignment of the note and mortgage in question to plaintiff, was incompetent to make it on account of his mental condition, and that they were therefore still the property of the estate of E. Y. Malich. Plaintiff answered, denying the allegation that her assignor Malich was not competent to make the assignment in question, and in the third section of a second and separate defense alleged, among other things, "that the said assignment of said note and mortgage aforesaid was executed and delivered by said E. Y. Malich to this plaintiff for a good and valuable consideration and for love and affection," and set up a judgment rendered in California in bar of the plea in intervention. Intervener replied as follows:

"Now comes Intervener and denies both generally and specifically, all material affirmative allegations set forth by plaintiff in first three sections of so-called Second Defense to Intervener's Amended Complaint."

The case was tried to the court sitting without a jury, and a large amount of testimony was taken, most of it being upon the question of whether or not, at the time the assignment was executed, Malich was competent mentally to make it, but a considerable portion being on the issue of what, if anything, was the consideration for the assignment. So far as the question of mental competency is concerned, there is a sharp conflict in the evidence. The physicians whose evidence was offered by intervener testified substantially that Malich at the time he made the assignment was in an abnormal state mentally and not in a condition to transact any important business. On the other hand, a number of lay witnesses testified that in their opinion he was competent for that purpose.

It is urged that the court was bound to consider the testimony of the physicians as conclusive on this point. We are cited to no authorities supporting this contention, and it seems to us obviously unsound. If the opinion of the physicians is conclusive upon a matter of this kind, there is no reason why lay testimony on the subject should be admitted at all, yet it is universally held that such testimony is proper. Since the trial court found, on conflicting evidence, that Malich at the time of the execution of the assignment in question was competent to make it, we are bound by its findings.

The question as to the consideration is more serious. It is first contended by plaintiff that under the pleadings the issue of want of consideration is not before us, for the reason that the reply of plaintiff, above set forth, being merely a general denial, did not raise an issue on that point. It is the ordinary rule of pleading that, where a suit is based upon an instrument which as a matter of law imports a consideration, it is not necessary that a consideration be pleaded, nor can a want or failure thereof be offered in defense under a general denial. Griffith v. Wright, 21 Wash. 494, 58 P. 582; Nunn v. Jordan, 31 Wash. 506, 72 P. 124; Greer v. Latimer, 47 S.C. 176, 25 S.E. 136; Nixon v. Beard, 111 Ind. 137, 12 N.E. 131.

The note and assignment on which plaintiff relies, under the laws of Arizona, import a consideration. Section 3048, Rev. Code 1928. It was not necessary for plaintiff to plead or prove a consideration therefor, and her allegations that the assignment was made "for a...