Braly v. Henry , 3 Cal. Unrep. 3 ( 1888 )

FOOTE, C.

Upon the former appeal it was held that the partial failure of consideration was a defense pro tanto: 71 Cal. 481, 60 Am. Rep. 543, 11 Pac. 385. When the case went back for trial, one of the principal questions was whether the plaintiff had purchased the note with notice of the partial failure of consideration, or, in other words, whether he was an innocent holder for value. On the retrial the plaintiff, on cross-examination, was asked whether he purchased the note, which question was objected to and excluded. He was also asked the following question: “Do you know anything about the consideration for which this note was given?” which question was objected to and excluded. He was also asked the following: “You knew all about the facts of this note having been executed for a stack of hay, at the time it was transferred to you, did you not?” which question was objected to and excluded. He was also asked the following: “You were a party in interest to the contract for the sale of the hay for which the note was executed, were you not?” which question was excluded on objection. He was also asked the following: “At the time the note was given, did you know what it was given for?” which question was excluded on objection. We think that the court committed error in not allowing the questions to be propounded to the witness and answered. It is evident that under the pleadings it was admitted that the note in controversy was indorsed and delivered to the plaintiff, and that, therefore, the defendant could not he allowed to show by evidence that plaintiff was not the owner of the note. Nevertheless, whether he was or not a purchaser for value, or took it with notice of the partial failure of consideration, which it was the evident purpose of the defendant to elicit by his questions put to the plaintiff, was a material matter to the defendant’s defense, and should have been allowed to be shown. While the interrogatories were not skillfully framed, yet their purpose is manifest, and they should have been allowed to be put. The order denying the motion for a new trial is part of the record on appeal, and this order recites that a notice of intention had been given. This sufficiently showed that there was such notice. We think the judgment and order appealed from should be reversed, and the cause remanded for a new trial.

I concur: Hayne, C.

Belcher, C. C., did not take part in this opinion.

PER CURIAM.

For the reasons given in the foregoing opinion the judgment and order are reversed and cause remanded for a new trial.