Clevenger v. Smith , 126 Or. 384 ( 1928 )

In Banc. Defendant appeals from a judgment rendered upon findings and conclusions of the Circuit Court. The complaint is based upon an ordinary promissory note. Defendant admits the execution of the note and in his original answer pleaded no consideration, setting up facts intended to disclose an illegal consideration for the note as an affirmative defense. To the affirmative answer plaintiff filed his demurrer which was sustained. Thereupon defendant filed an amended answer in which his first affirmative defense is as follows: "Now for a further, separate and affirmative defense, the defendant alleges that there is no consideration for the making or execution or delivery of said note." The amended answer was served September 6, 1927. Defendant also set up a counterclaim.

Plaintiff's demurrer to the first further and separate defense was sustained April 2, 1927. Defendant was allowed 30 days from that time in which to file his amended answer. The case was thereby continued for the April term. The amended answer was filed about September 6, 1927, and the reply filed September 16, 1927. Defendant moved twice for an order to continue the case. His first motion was based upon his affidavit and does not comply with the statute in any regard. The motion was denied and thereafter defendant filed another motion supported by the affidavit of one of his attorneys and the affidavit of his partner, W.G. Homan. Neither of these affidavits cover the statute. Defendant, after he received notice that the case would be called for trial at the approaching term of court to be held in October, left the state to take a post-graduate course in the City of New York and was not present at the trial. The learned circuit judge denied the motion to continue. Thereupon defendant withdrew his counterclaim. The action was tried without a jury on the complaint and the amended answer, omitting the second affirmative defense and counterclaim, which had been withdrawn. The sole issue at the trial was whether or not the promissory note was given without consideration. It was agreed by counsel for the parties that defendant Dr. Smith would testify to a certain state of facts if he were present. After plaintiff had made a prima facie case, defendant's counsel offered to introduce the stipulation setting up the facts defendant would testify to. An objection was made to those alleged facts on the ground that they were immaterial, irrelevant and incompetent. The objection was sustained. The court rendered judgment for plaintiff, hence this appeal. AFFIRMED. By filing an amended answer after the demurrer to the further and separate defense in the original answer was sustained the original answer ceased to be a part of the pleadings. The pleadings, upon which the trial was conducted, are the complaint, the amended answer and the reply thereto. It is elementary law that in order to prove an illegal consideration the facts constituting the alleged illegality must be pleaded: 13 C.J. 742, § 890; Wilson v. Prettyman, 94 Or. 275 (185 P. 587);Whitney v. Day, 86 Or. 268 (168 P. 295). The amended answer contains no facts tending to show failure of consideration or illegality of consideration. Further, the citation from C.J., above, also states this principle: "Illegality in the consideration cannot be pleaded as a failure of consideration." Defendant in the instant case has pleaded failure of consideration and has attempted to prove it by showing illegal consideration. The proffered testimony was incompetent. The court did not err, therefore, in sustaining objections to the proffered testimony of defendant.

We think the court did not abuse its discretion in denying motions for continuance. Such motions are always addressed to the sound discretion of the courts. This court will not interfere with the ruling of the trial court, unless that ruling is an abuse of its discretion. In the instant case defendant was given 30 days from the second day of April, 1927, in which to file an amended answer. He did not file that amended answer until September 6th. There was ample opportunity for defendant to have prepared his amended answer and to have his testimony reduced to writing before he left the state for New York. His absence was not due to necessity. He was going for his own advantage. His motive for departing from the state was most commendable, but is not sufficient reason to have postponed the trial of this action. Again, our statute prescribes that if the opposing party will agree the absent witness if present would testify to certain facts continuance will not be granted. Plaintiff agreed that defendant would testify to certain facts; therefore the court ruled in harmony with the statute in denying the continuance: Or. L., § 115.

Under the issues framed by the pleadings the stipulated testimony of defendant was not competent. No consideration as alleged is a conclusion. The offer of defendant was an attempt to prove want of consideration by evidence of an illegal consideration. The facts constituting the alleged illegality of the contract were not pleaded; consequently defendant was not entitled to testify to it. The contract did not appear to be illegal from anything of record, so that the court could not of its own motion declare the promissory note unenforceable: Vnuk v. Patterson, 118 Or. 602, 612, 613 (247 P. 766, 47 A.L.R. 394); Newport Construction Co. v. Porter, 118 Or. 127 (246 P. 211); Ah Doon v. Smith, 25 Or. 89 (34 P. 1093).

Judgment is affirmed. AFFIRMED.