Hibernia Savings & Loan Society v. Thornton , 127 Cal. 575 ( 1900 )

This is an action brought upon a promissory note. Plaintiff having introduced the note in evidence and rested, a motion for a nonsuit was made by defendant and granted, whereupon plaintiff appeals.

The motion for a nonsuit was made and granted upon the ground that the promissory note upon which the action was brought was secured by a mortgage, and that no action was brought to foreclose the mortgage. It is now insisted by plaintiff that there is no evidence in the record showing the note to have been secured by a mortgage. The note was introduced in evidence, and among other matters it recited: "And if default be made in the payment of the principal sum, as above provided, it shall bear interest thereafter until paid at the rate of two per cent per month. This note secured by a mortgage of even date herewith." Upon a previous appeal in this case (Hibernia Sav. etc. Soc. v.Thornton, 117 Cal. 481) it was held that the complaint contained no allegation that the promissory note was secured by a mortgage. The complaint at that time was the same as we have in this record, and contained in the body thereof a copy of the note. Upon that appeal the court said: "There is, however, no averment in the complaint that the note was secured by a mortgage, and the recital to that effect in the note cannot, as matter of pleading, be treated as the equivalent of such averment. It is only by inference or argument from this recital that it can be assumed that a mortgage was ever executed, and the rule is as much in force under the code as at common law that argumentative pleading is not permissible."

Plaintiff now rests this appeal upon the construction of the pleading declared by the foregoing language. But a material difference at once presents itself between the case at bar and the case presented upon the previous appeal. The court, upon that appeal, was dealing with the pleading as such, while upon this appeal it is dealing with the evidence as such. While the recital, "this note secured by a mortgage of even date herewith," may not be sufficient as a statement of fact, viewed from the standpoint of a good pleading, still that recital may be sufficient evidence prima facie to establish the fact as matter of proof. In this case the plaintiff offered the note in evidence, and thereafter it became prima facie evidence of any facts recited therein. It necessarily follows that upon the introduction of the note in evidence it appeared to the court from its face that it was secured by a mortgage. For this reason the judgment of nonsuit was properly granted.

Judgment and order affirmed.

Van Dyke, J., Harrison, J., McFarland, J., and Beatty, C.J., concurred.