Frost v. Harford , 40 Cal. 165 ( 1870 )

Wallaoe, J.,

delivered tbe opinion of tbe Court, Temple, J., Cbookett, J., and Rhodes, C. J., concurring:

There was upon tbe face of tbe complaint no misjoinder of parties plaintiff. It did not appear by any averment in tbe complaint that tbe plaintiffs were husband and wife at tbe time tbe note was given to tbe female plaintiff. Tbe demurrer was, therefore, properly overruled.

Tbe finding of tbe Court below is, tbat tbe defences set up in tbe answer (tbat tbe note in suit was not made by tbe deceased, William Harford; tbat there was no consideration etc.,) are not true in point of fact, and as tbe evidence is conflicting upon all tbe points, tbe finding'will not be disturbed bere.

Tbe defence set up in tbe answer, to tbe effect tbat tbe plaintiff, Margaret, is not tbe legal owner and bolder of tbis note, wbicb runs to ber upon its face, is frivolous; and tbe other defence, tbat tbe note is not ber separate property, is tbe statement of a mere conclusion of law; and each of these pretended defences would doubtless have been stricken out in tbe Court below on motion.

■ Tbe judgment and order are affirmed.

Sprague, J., expressed no opinion.