Opinion
Appeal from the Superior Court of the City of San Francisco.
The plaintiff sued on a bill of exchange for $ 3,000, drawn by the defendants on the plaintiff, and accepted for their accommodation, and paid by him at maturity.
The defendants filed a general denial of the allegations of the complaint.
Afterwards the defendants moved the Court for leave to file an amended answer, setting up a defense growing out of a set-off, arising since his first answer was filed. The motion was refused.
At the trial the defendants offered to prove that on the day the bill of exchange was drawn the defendants procured a conveyance from one Flannery to plaintiff, of a lot in San Francisco, for which defendants had paid Flannery $ 3,000; in consideration of which, Flannery conveyed the lot to plaintiff; and that since the filing of defendants' answer, the plaintiff had sold the lot for $ 5,000, and had executed a conveyance to his vendee.
This evidence was excluded, and defendants excepted; and judgment being rendered against them, they appealed.
JUDGES: Mr. J. Heydenfeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred.
OPINION
HEYDENFELDT, Judge
There is nothing in the record which shows the character of the proposed amendment to the answer, and we are therefore unable to say that the Court erred in refusing the application to amend; the presumption is the other way.
The evidence, which is excluded, would have been proper under a plea of payment puis darrein continuance, but without such plea, it was irrelevant to the issue, and therefore, inadmissible.
Judgment affirmed.