Points decided.

tendered it to Morgan, though the latter, some twenty-eight days after the date of the Forbes deed, again made a demand on Stearns for the possession of the premises, to which demand he made no reply whatever. That would have been an appropriate time to offer the quit-claim deed which he had caused Forbes in the meantime to prepare, if he had intended to act in good faith in the premises.

It is unnecessary to examine to what, if any, extent the rule of damages for failure to convey land is affected by the good faith of the defendant appearing. In this case it clearly appears that the defendant has the title to the premises that his quit-claim deed would be sufficient to convey it to the purchaser, and that he willfully refused to comply with the terms of the agreement to convey merely because the land has in the meantime considerably appreciated in value.

Mere nominal damages do not belong to such a case. There is nothing in the other points, and the judgment is affirmed.

SPRAGUE, J., expressed no opinion.

No. 2,249.

NOAH FELCH, RESPONDENT, v. PRUDENT BEAUDRY, APPELLANT.

PRACTICE. JUDGMENT ON THE PLEADINGS. If the complaint be suffclent, judgment may be rendered on the pleadings where the answer expressly admits the material facts stated in the complaint, or leaves them undenied, or merely sets up new matter in defence which is found substantially insufficient to debar or defeat the action.

IDEM. The ground upon which a motion made by plaintiff for judgment on the pleadings proceeds in any case, is that his complaint is sufficient to warrant it, and that the answer presents nothing, either by way of denial or of new matter, to bar or defeat the action. IDEM. MOTION TO FILE AMENDED ANSWER.- Where a motion is made by the plaintiff for judgment on the pleadings, if the defendant intends to abandon his answer and substitute another one in its stead. he must make his application for leave before judgment is ordered: he wait till after that time a denial of the application involves no abuse of the discretion of the Court.

Argument for Appellant.

IDEM.- PLEADING.- FRIVOLOUS DEFENCE. A defence by the payer of a note, that the plaintiff is not the lawful owner or holder of the instru ment sued on, when upon its face it runs to him, and which discloses no issuable fact to support it is merely frivolous.

IDEM. PLEADING. CONSIDERATION OF NOTE. SEPARATE PROPERTY ОР WIFE. Where the payer of a note is not the trustee of the wife of the payee nor charged with the care of her estate, it is no defence in an action to recover on the note, that the consideration mentioned therein was a conveyance of the separate property of the wife, and that her husband was endeavoring to defraud her out of it by recovering for himself in such action.

IDEM.

PLEADING.— PAYMENT TO WIFE OF PAYEE.- Where as a separate defence, and disconnected with any averment that the money was her separate property, it is averred that before the commencement of the action defendant had fully paid and discharged the note by payment thereof to the wife of the payee, the averment is as insufficient to bar the action, as a plea that the defendant had paid the money to any other stranger who had no authority to receive it. IDEM. PLEADING.— PENDENCY

OF ANOTHER SUIT FOR SAME CAUSE OF ACTION. Where the pendency of another suit is pleaded in bar of an action, the same person must appear to be the plaintiff in both actions. Per CROCKETT, J.:

PRACTICE. JUDGMENT ON THE PLEADINGS.

MOTION TO FILE AMENDED ANSWER. Where the original answer presents no defence, and judgment is rendered on the pleadings on motion of the plaintiff, it is an abuse of its discretion for the Court to refuse leave to the defendant to file a sufficient amended answer.

APPEAL from the District Court of the Seventeenth District, Los Angeles County.

Action brought to recover a sum of money claimed to be due plaintiff upon a certain contract. Plaintiff demurred to the answer, and the demurrer was overruled. He then moved the Court for judgment on the pleadings which motion was sustained, and judgment ordered accordingly. Defendant then moved the Court for leave to file an amended answer. The motion was denied, as was also a motion to set aside the judgment. This appeal is taken from the judg ment and from the said orders.

The other facts are stated in the opinion.

Glassell, Chapman & Smith, for Appellant.

FirstOur practice knows no such motion as that for

Argument for Respondent.

judgment on the pleadings. (Wedderspoon v. Rogers, 32 Cal. 570; Gay v. Winter, 34 Id. 161.)

The order of the Court in any event should have been to strike out the answer, and for judgment, if defendant failed to file an amended answer. (Pr. Act, Secs. 50, 68; 32 Cal. (supra); 34 Cal. (supra); N. Y. Code, Sec. 152; People v. McCumber, 18 N. Y. 320.)

Second-The practice is universal to give leave to amend after demurrer sustained. (Smith v. Yreka W. Co. 14 Cal. 201: Gallagher v. Delaney, 10 Id. 410; Lord v. Hopkins, 30 Id. 76; Pr. Act, Sec. 68; Russel v. Clapp, 7 Barb. 482; Bently v. Jones, 4 How. Pr. 202.)

We should have been permitted to file our amended answer. (Kierstein v. Madden, July Term, 1869.)

Third — The principle that where property is purchased in the name of one, and the consideration advanced by another, applies as well to personal property, choses in action, etc., as to real property. (2 Story's Eq. Sec. 1201; Adams, Eq. pp. 155-6 [33, 34]. So where the husband purchases with the wife's separate property. (Adams Eq. Id.)

Fourth-The party advancing the consideration is entitled to the benefit. Felch was a mere naked trustee for his wife. (Schneider v. Webb, 3 Cal. 83; Selour v. Russian Am. Co., 7 Id. 274; George v. Ransom, 15 Cal. 322; Spear v. Ward, 20 Id. 674; Mahone v. Grinshan, 20 Id. 176; M. E. Church v. Jacques, 1 John. Ch. 450; Lewis v. Johns, 24 Id. 98, 102-3; Dickinson v. Owens, 11 Cal. 73; Dow v. Gould & Curry S. M. Co., 31 Id. 643; Ingolsby v. Juan, 12 Id. 576; 2 Story's Eq. Sec. 1196; Hill on Trustees, 49; and other numerous authorities.)

Fifth If the note does not belong to Mrs. Felch, then it is void on grounds of public policy. (2 Kent's Com. 597 601, 637.)

A. Brunson, R. M. Widney, and E. J. C. Kewen, for Respondent.

First-A verdict on the pleadings was ordered in Corwin . Patch, (4 Cal. 204.) Appellant did not, except to the rul

Argument for Respondent.

ing on the motion for judgment. (Turner v. Tuolumne C. W. Co. 25 Cal. 434; McCarthy v. Fitz Henry, 16 Cal. 186; Quivey v. Gambert, 32 Cal. 304.) It is too late to make the exception on appeal for the first time. (Morgan v. Hugg, 5 Cal. 409; Collier v. Corbett, 15 Cal. 183; McCarthy v. Fitz Henry, (supra).

Second Appellant cannot complain on appeal that the terms of the judgment did not permit him to amend, when before judgment he made no such offer. (Smith v. Yreka W. Co., 14 Cal. 201.) This Court will only interfere where there is an abuse of the discretionary power of the Court. (Gilland v. Hutchinson, 16 Cal. 153; Thornton v. Borland, 12 Cal. 438.)

Third-The answer was insufficient, not being specific in its denials. (Pr. Act, Sec. 46.) A note payable to a married woman is in law the note of her husband. (Savage v. King, 17 Me. 301.)

Fourth-The denial that plaintiff is the lawful holder or owner of the note, is but a legal conclusion. (Poorman v. Mills, 35 Cal. 118; Wedderspoon v. Rogers, 32 Cal. 569.) The consideration was good and sufficient for the note. (Haigh v. Brooks, 36 Eng. Com. Law, 185; Miller v. Drake, 1 Cal. 45; Chitty on Contracts, 29; Stebbins v. Smith, 4 Pick. 97; Smith v. Weed, 20 Wend. 184; Hinman v. Moulton, 14 Johns. 466; Whitbeck v. Whitbeck, 9 Cow. 266.)

Fifth-The averment that the note is the separate property of the wife is no defense. (Wedderspoon v. Rogers, (supra.) Poorman v. Mills, (supra.)

Payment to a married woman of a sum due on a note to her will not discharge the party making it, unless it was authorized by the husband. (1 Pars. on Notes and Bills, 89; Barlow v. Bishop, 1 East, 432; Solomon v. Dawes, 1 Esp. 83; Sawyer v. Cutting, 23 Vt. 486; Offly v. Clay, 2 Scott, N. R. 372; Hittell's General Laws, Sec. 3,568; Tryson v. Sutton, 13 Cal. 490; Van Maren v. Johnson, 15 Cal. 310.)

Sixth-As a plea in bar of recovery, the defence of the pendency of another action is not available, unless the

causes of action, and the plaintiffs, at least, are in both actions the same. (Ayres v. Bensley, 32 Cal. 630; Cala veras Co. v. Brockway, 30 Cal. 325.)

Seventh-The application to amend came too late. It is not an absolute right; (Covillaud v. Tanner, 7 Cal. 38.) After a verdict for plaintiff, defendant cannot take advantage of his own mispleading to defeat the suit. (Coon v. Whitmore, 12 Johns. 353.)

Eighth - The application to set aside the judgment, etc., rested in the sound discretion of the Court below; unless it is shown to have been abused, this Court should not interfere. (Mulholland v. Heyneman, 19 Cal. 605; Woodward v. Backus, 20 Cal. 137; Nooney v. Mahoney, 30 Cal. 226.)

WALLACE, J., delivered the opinion of the Court. RHODES, C. J., and TEMPLE, J., concurring:

The plaintiff obtained judgment on the pleadings in the Court below.

It is objected here that the practice prevailing in our Courts does not permit a judgment to be entered on the pleadings. If a complaint be itself sufficient, there is no question that the plaintiff may apply for judgment on the pleadings, if the defendant has filed an answer which expressly admits the material facts stated in the complaint; and so when the answer filed leaves all the material allegations of the complaint undenied; this practice is constantly pursued, when denials in verified answers are literal merely, or conjunctive, evasive, or the like. If this be the practice as to answers which insufficiently deny the plaintiff's allegations, why should not answers, which merely set up new matter in defense, if found substantially insufficient, be subjected to the same practice? The ground upon which a motion, made by plaintiff for judgment on the pleadings, proceeds in any case, is that his complaint is sufficient to warrant it, and that the answer presents nothing, either by way of denial or of new matter, to bar or defeat the action.