Case v. Maxey

Decided July 1, 1856

California Supreme Court · decided 1856-07-01

Action on a promissory note. The defendant’s answer, filed May 5th, 1854, admits the execution of the note, and avers that it was given for the plaintiff's interest in land held jointly by the parties; it also avers that plaintiff and defendant were jointly interested in cattle purchased by them as partners and brought across the plains by plaintiff; that plaintiff had deceived defendant and pretended that one half of the cattle brought across by him belonged to other…

Cited by 3 later decisions — most recently March 1939

3 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1856-07-01

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The opinion of the Court was delivered by Mr. Chief Justice Murray.

¶1Mr. Justice Terry concurred.

¶2The order of the Court below striking out a portion of the answer was proper, as it was no defence to the action.

¶3It is not alleged that the note sued upon was given in payment for a division of the cattle; on the contrary, it appears that it was given for the defendant’s interest in the ranch and money expended in bringing the cattle across the plains.

¶4If the plaintiff has been deceived in the division of the stock, as he alleges, he should file his bill for a discovery and account; but as such division had nothing to do with the consideration of the note sued on, it cannot be set up as a counter claim, or equitable defence to this action.

¶5When this case was here before, this point was not made, and the judgment was reversed on account of the insufficiency of the referee’s report.

¶6Judgment affirmed.