Civ. No. 347.
June 14, 1907.
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. W. P. James, Judge.
The facts are stated in the opinion of the court.
Tom C. Thornton, for Appellant.
Drew Pruitt, and Morton, Houser Jones, for Respondent.
The respondent, who is an architect, alleges that he was employed by appellant to prepare certain plans and specifications and receive estimates for, and superintend the erection of, a three-story hotel on the southwest corner of 9th street and Grand avenue, in the city of Los Angeles, of the estimated cost of $64,000; that the reasonable value of the services agreed to be performed by respondent for appellant was the sum of $2,560; that respondent entered upon said employment, prepared the necessary plans and specifications for said building, and received estimates for the erection thereof; that notwithstanding the fact that respondent at all times was ready and willing to perform his part of said agreement, he was, about June, 1904, wrongfully discharged by appellant.
In his answer appellant denies all of said allegations and sets up another agreement, under which respondent was to submit plans for a building which should not involve an expenditure to exceed $25,000; that the plans submitted called for the expenditure of an amount largely in excess of said sum; that respondent admitted that such plans were not in conformity with their agreement; that thereupon plaintiff and defendant, after a full discussion of plaintiff's claim for compensation, had a full accounting, and accord and satisfaction, wherein it was agreed that defendant should pay plaintiff the sum of $150 in full of all demands which plaintiff might have or claim against defendant by reason of his negotiations, labors, or otherwise, in connection with the proposed building on 9th street and Grand avenue, which sum appellant paid to respondent in full satisfaction of all his demands in the premises; that said payment was made by a check, payable to the order of plaintiff, in the lower left-hand corner of which was a memorandum in the words and figures following: "In full for 9th and Grand ave. fees"; which check was duly indorsed and cashed by plaintiff. A copy of this check, with the indorsement thereon, is made a part of defendant's answer. No affidavit denying the check was served or filed by plaintiff, as provided in section 448, Code of Civil Procedure.
Defendant's motion for judgment on the pleadings was denied. The case was tried before a jury, which gave a verdict for plaintiff and judgment was entered accordingly. The appeal is from the judgment and an order denying defendant's motion for a new trial.
There was no error in the denial of appellant's motion for judgment on the pleadings. Admitting the execution and genuineness of the check was not an admission of the new matter set up in the answer by way of accord and satisfaction, or that the check related in any way to the transaction set forth in the complaint; all of which, under section 462, Code of Civil Procedure, must be deemed to be controverted. It, therefore, devolved upon defendant to connect this check with the transaction upon which plaintiff based his action and prove that it was given and received as alleged in the answer. In the absence of evidence establishing such facts, it did not in itself constitute sufficient evidence in support of the new matter alleged in the answer. While plaintiff admitted receiving the check, and that it was genuine and duly executed, he did not admit that it was received as set forth in the answer. "The effect of an admission of the genuineness and due execution of an instrument pleaded by a defendant, and not denied, as provided by section 448 of the Code of Civil Procedure, is to avoid the necessity of proof of its genuineness and due execution, and nothing more; and whether it is proven or its execution is admitted its terms and legal effect are to be determined by an inspection of the instrument." ( Carpenter v. Shinners, 108 Cal. 362, [41 P. 473].)
At the trial the appellant offered no evidence whatever. He now contends that the evidence was insufficient to justify the verdict, and that the court erred in its charges to the jury. The court instructed the jury as follows: "If you find that the check was intended to apply to the demand here sued upon, and that plaintiff accepted the check with words written thereon indicating that it was to be in full payment of all of such demands, and that he was aware of the presence of such words, then the check should be received by you as evidence of a complete settlement of such demand." In another part of the charge the jury were instructed upon the theory that it was for them to find from the evidence whether or not plaintiff had knowledge of the presence of the memorandum at the time of the delivery of the check to him, or knew of the writing upon such check, before it passed out of his possession.
Having failed to file the affidavit of denial required by section 448 of the Code of Civil Procedure, respondent is deemed to have admitted the execution and genuineness of the instrument. Notwithstanding this admission he may controvert the instrument by evidence of mistake, fraud and like defenses, or show that it had no connection with the demand sued upon. ( Moore v. Copp, 119 Cal. 429, [51 P. 630].) He offered no evidence touching the question, and in the absence of any testimony, the instrument stands as an exponent of the facts therein set out, and its terms and legal effect are to be determined by an inspection of the instrument. ( Carpenter v. Shinners, 108 Cal. 362, [41 P. 473].) In the absence of any evidence to the contrary, respondent is chargeable with what the instrument purports on its face to be, and it must be taken for just what it appears to mean. ( Petersen v. Taylor, 34 P. 724; Brooks v. Johnson, 122 Cal. 569, [55 P. 423].) Having failed to controvert it, respondent must be presumed to have had knowledge of the existence of the memorandum on the check at the time of the delivery thereof to him and to have known of the writing thereon before it passed out of his possession. No proof of this fact was necessary. It was, therefore, error to instruct the jury, in effect, that notwithstanding they found the check was intended to apply to the demand sued upon, they must, nevertheless, in order to render a verdict for defendant, find the further fact that respondent was aware of the presence thereon of the words, "In full for 9th and Grand avenue fees," and that respondent "had knowledge of the presence of the memorandum written on the check at the time of its delivery to him," or that "he knew of the writing upon such check before it passed out of his possession." All that can be claimed for this check is that it constituted a receipt for money paid to respondent pursuant to the alleged settlement. As such, it is open to contradiction or explanation by parol testimony. In the absence of such contradiction or explanation, respondent is bound by what it purports on its face to mean. ( Simmons v. Oullahan, 75 Cal. 508, [17 P. 543]; Snodgrass v. Parks, 79 Cal. 55, [21 P. 429].) There is nothing in Greer v. Laws, 56 Ark. 37, [18 S.W. 1038], or in Rapp v. Giddings, 4 S. Dak. 492, [57 N.W. 237], cited by respondent, inconsistent with the general rule.
The judgment and order are reversed.
Allen, P. J., and Taggart, J., concurred.