The Nevada Democrat., 1862-02-01
DTsTRTcT COURT DECISION.
sr.rv oy CALIFORNIA, COUNTY or NEyA A-DETRlc
CoURT or THE 14TH JUDICIAL DISTRICT.

| Co.. vs. James Ryan ct aL., composing the
! Teu,aessee Co. This cause was originally tired
| before my predecessor, Hon. Niles Searls, who
gave Judgment for pl'ffs. IN the sum Of $olO-
/ 33-lO6 against all the defts, except John Ryan,
and afterwards, granted pl'tfs. new trlal as
to the said Ryan, upon the ground that ms
answer did not deny the making, or delivery, OF
the notes sued on. The answer was suose-
ouently amended, and the only issue now pend
inc is between plfs. and def't. John Ryan.
! The defense set up of former recovery IN
Justices Court was fully determined at the first
hearing, and the findings of the Court at that
time, on this point are hereby adopted.
This action is brought upon four promissory
notes, and counsel in plaintiffs contends that
defendants answer, as amended, still fails to
deny their execution, or delivery. The tebti-
mony Of the witnesses introduced by defendant
provided the same was properly admitted
shows conclusively that neither Of the notes
was made or delivered by the defendant John
Ryan; and indeed, as plaintiffs offered no proof
of the execution of the notes, the defendant
is entitled to judgment upon the pleadings, pro-
vided his answer denies that fact. The only
question In the case, then, is, Does the answer
of defendant deny the making and delivery OF
the notes, or either of them, set forth in the
complaint? (The amount due upon the notes
is $50 49, 100, and def't. admits that they
we're in the possession of plfs. at the COM
mencement Of the action.)
The complaint, which is verefed, contains
four counts, each setting forth promissOry
note alleged to nave been made and delivered
by the defendants under the firm name of the
Tennessee Company; and the answer contains
quite number of denials to each separate
count of the complaint. The denals of the
first and second counts are, in substance, the
same, and may be considered together.
These denials are all in bad form, and most
OF them are fatally defective; so that it is very
difficult to tell whether the answer raises any
material issue. 1t denies that son the day al
legged" the defendant made the nOte-but the
time is immaterial; that defendant "became
liable to pay the same"-which is only legal
consequence that he ever undertook and
promised in manner and form &C." which is
the old general issue in assumpsit, and is a
nullity; and that defendant was member of
the firm in whose name the notes were given
but this, according to the doctrine of White
well VS.. Thomas 9 Cal, is not material, because
the making of the note, and not the partner.
ship, is the material aveTment. There are also
several other deDials which apparently seek to
traverse the making Of the notes, but fail to do
so.
The defendant, however, does allege in his
answer that the writing obligatory" mentioned
in the said count of the said complaint was not
made, executed, and delivered, by this defend
ant. This, of course, would be full denial, if
the instrument referred to had been given its
right name-'promissory note" instead of the
unusual appellatiOn of "writing obligatory"
but counsel for plaintiff contends that the latter
expression means, in legal language a bond,
and that, as no "bond' is mentioned in the
complaint this part of the answer is simply a
denial of something that is not alleged, and
therefore a nullity. The words @writing
obligatory" in their most technical sense, i'm
port sealed instrument, but they have also a
wider signifcation. They were formerly-and
still are-usually employed to designate bond;
but the term also signifies any instrument by
which contract IS witnessed. In its more
enlarged sense | think the expression includes
every written instrument containing promise
that may be enforced at law. In which of its
signifcations then should it be taken as used
by defendant in his answer! | am aware of
the maxim that everything must be taken most
strongly against the party pleading; but it is
also a rule that the language of a pleading
must have a reasonable intendInent and con-
struction, and that when an expression is capa-
BILE of different meanings, that shall be taken
which will support the pleading, rather than
that which would defeat it. The intention of
party should be looked to in the construction
any other Instrument; and when word IS sus-
ceptibae OF two meanings, one Of which makes
the pleading rational, and the other nonsensi-
cal, the former must be taken. And when the
question is whether the words should be under
stood IN comprehensive or restricted sense,
the presumption is in favor of the comprehen-
sive sense. In the ease at bar, the answer de-
nies that defendant executed, &C., the writing
obligatory mentioned in the complaint: and as
the promissory note is the only thing in Che
shape of "writing" that is mentioned at all
IN the complaint, and as the term 'writing
obligatory" in its most enlarged sense (although
certainly not in the sense usually given to it
by pleadeTs) includes promissory notes,
think the denial must be taken as referring to
the notes and not to an imaginary "bond."
This construction gives a rational meaning to
the words as used in the pleading, which 9TH
erwise would have no meaning at all. That
this was the intention of the defendant may be
Cleaned from the other portions of the answer.
which show that he was tryii,g to DENY that he
had made the notes, although the attempt was
not successful.
The denials of the two last counts are the
same as the two first, except that they deny
the making and delivery of the writing in con-
Junctlve instead of the distinctive. There is
also clause-as indeed there is in the denials
OF the first two counts-in which it is alleged
that the writing obligatory is not the act and
deea OF the detendent. 1t is not necessary to
decide whether denial that promissory note
Is party's act and deed, means that he did
not make 1t, or whether any probable meaning
whatever can be attached to the expression
used in such connection, as think the delivery
of the notes is denied in the coniunctiye clause
above referred