
    Alden, Impleaded, etc., v. Carpenter.
    1. "Where a defendant filed an affidavit in support of a motion for com . tinuance on the ground of the absence of a witness, and the plaintiff offered to admit that the witness, if present, would swear to what was stated in the affidavit, and the motion being denied, held,' not error.
    2. Admitting the testimony of an absent witness in order to avoid a continuance is not to be taken as an admission of the truth of such-testimony ; nor does such admission preclude the party admitting it from rebutting the same on trial.
    3. There is no such thing as a general denial in pleading under -the.* code; a specific denial is required to each and every allegation in the complaint intended to be controverted. In an action- on ]a promissory noté it is proper to plead the want of consideration by' specific averment, and in such case an issue is formed without a ■ reply.
    4. A mere irregularity in the order of proceeding in the trial court, and which could not have prejudiced the appellant, is not assign- , able for error-.
    
      Appeal from County Court of Pueblo County.
    
    
      The facts are stated in the opinion.
    Mr. John M. Waldron and Mr. T. T. Player, for appellant.
    Messrs. Patton and Urmy, for appellee.
   Stone, J.

Appellee brought suit against the appellant, E. K. Alden, and one A. L. Price, upon a promissory note, of which the following is a copy:

“$1,0Ó0. Pueblo, Colorado, January 5, 1882.

“One month after date, we, jointly and severally, promise to pay to the order of A. V. Carpenter one thousand dollars, without interest, at The Stockgrowers’ National Bank. Value received.

“Alden & Price,

“E. K. Alden,

“A. L; Price.”

The separate answer of Alden denies that he, or any authorized person for him, executed said note, and denies that the said note was executed and delivered to plaintiff by defendants.

The separate answer of Price alleges that the note was given without any good or valuable consideration whatever.

Defendant Alden filed an affidavit for continuance, on the ground of the absence of a certain witness, by whom, he expected to prove that said defendant Alden “authorized said Price to sign a note for the indebtedness to plaintiff, on the express condition that the said note should contain a provision for its renewal at the option of defendants at maturity, and that this provision was afterwards omitted from the note when executed by said Price, as aforesaid, without said Alden’s consent.” The motion for continuance was argued by counsel and taken under advisement by the court, and afterwards, when the court was about to announce its decision granting the continuance, the plaintiff offered to admit that the witness, if present, would swear to what was stated in the affidavit it was expected to he proved by him; whereupon, against the objection of defendant Alden, the court allowed the offer of plaintiff and denied the continuance. This ruling of the court was excepted to, and is made one of the grounds of error; counsel for appellant objecting that the offer of appellee was not made in apt time. We see no error in this ruling of the court. Such offer is a privilege of the party against whom the continuance is sought, and the allowance of the offer, as made, is within the discretion of the court, and we see no good reason why such discretion may not be exercised as well after the court has decided that the evidence is material, as when the motion is first made. It certainly would be unreasonable to expect that a party would admit the assumed testimony while he was at the same time contesting the insufficiency of the grounds for continuance. It is only when he knows that the continuance will otherwise be granted that such adverse party has any reason for admitting the supposed testimony sought by the continuance. The ruling of the court below was in accordance with the provisions- of § 158 of the Civil Code practice.

Another point made by counsel for defendants is that the offer of plaintiff should have been to admit the truth of the supposed testimony, and not merely that the absent witness would swear to the same if present. For the same reason error is assigned to the ruling of the court in allowing plaintiff, on the trial, to introduce evidence contradicting the admitted testimony of the absent witness. There was no error in this. Admitting the testimony of an absent witness, in order to'avoid a continuance of the cause, is not to be taken as an admission of the truth of such testimony; nor does such admission preclude the party admitting it from rebutting the same on the trial. Boggs v. The M. N. Co. 14 Cal. 358; Blakeman v. Vallejo, 15 Cal. 639; O’Neil v. N. Y. etc. Co. 3 Nev. 141; State v. Geddis, 42 Iowa, 264.

The principal authority cited in support of this assignment is the case of Supervisors, etc. v. M. & W. R’y Co. 21 Ill. 368, where the court below had held that such admitted testimony was liable to contradiction, and the supreme court, in passing upon the question, say: “We think, on principle, this view of the court was correct, as all parol testimony should be open to contradiction and to rebuttal; but this court having, at a very early day (Willis v. The People, 1 Scam. 402), established a different rule,- * * * adhered to up to this time, we do not feel justified in disturbing it.”

Another ground of error assigned is, that, since the plaintiff filed no reply to the separate answer of Price averring want of consideration for the making of the note, this averment must be taken as admitted to be true, and that, as such defense extended to both defendants, the plaintiff was not entitled to judgment.

Two questions arise upon this assignment: First. Could the defendant Alden, who, by his own plea, had merely denied the execution of the note, claim the benefit of this separate plea of the defendant Price? Second. Was this plea one which required a reply? As we think this last question must be answered- in the negative, it is unnecessary to pass upon the first.

' In assumpsit at common law evidence of the want of consideration for the contract declared upon was admissible under the general issue, and hence there was no necessity for the defendant’s pleading it specially. The practice, however, under which almost everything had come by degrees to be allowed as a defenses under the general issue in actions of assumpsit and debt, was materially changed by the rules of the English courts known as the Hilary Term Rules, under the statute of. 4 Wm. 4, for the purpose of preventing an abuse, by which the plaintiff was frequently misled as to the special defense intended to be relied upon under the general issue; and for some such reason, probably, a statute of Illinois, under which decisions are found, required a want of consideration, as well as a failure in whole or in part of the consideration, in that class of contracts upon which the forms of action referred to will lie, to be specially pleaded. Thé statute of Colorado of 1868, on the subject of bonds, bills and promissory notes (G-eneral Laws, § 97), provides that in actions upon notes, bonds, bills, etc., “ it shall be lawful for the defendant, against whom such action shall have been commenced by the obligee or payee, to plead such want of consideration or that the consideration has wholly or in part failed; ” with certain provisions as to bona fide assignees.

In New York it is held that evidence of payment, release, accoixl and satisfaction, and such like defenses, is not admissible under a general denial, but must be specially pleaded, and this ruling is put upon the ground that the general denial, under the code, is wholly unlike the general issue at common law. See the leading case of McKyring v. Bull, 18 N. Y. 297. In California, however, in a suit upon a promissory note, where the complaint averred that the note-was unpaid,- and that there was due upon it a specified sum, it has been held that evidence of payment is admissible under the general denial. Devanny v. Eggenhoff, 43 Cal. 395. This decision is based upon that in the case of Frish v. Caler, 21 Cal. 71, where the defense of payment was pleaded specifically, to which plea there-was no replication; and upon the question whether the want of such replication admitted the plea, the court held that the plea amounted to a simple traverse of the averment in the complaint that the note was due and unpaid, and hence needed no replication. See, also, McArdle v. McArdle, 12 Minn. 98. The question respecting the office and scope of a general denial in code pleadings does not arise in the case before us, since there is no such thing as a general denial in the Colorado code, a specific denial being required to each and every allegation in the complaint intended to be controverted. It was, therefore, proper, under the requirements of the code, and in accordance with the provisions of the statute before referred to, respecting suits upon bonds, bills and promissory notes, to plead the want of consideration by specific averment. But although an affirmative averment that the note was made “without any good or valuable consideration whatever,” can it be taken to amount to more in effect than a simple traverse of the complaint. True it is not a denial of any specific allegation in the complaint, but the instrument in suit being one of a class which imports a legal consideration, prima facie, it was not necessary to aver the consideration in the complaint. The consideration of a contract is but the inducement for the obligation. It stands upon a different footing from a failure of consideration, which must always occur subsequent to the making of the contract, and which, if pleaded as a defense, may well be regarded as new matter in avoidance of the original cause of action, and calling for a reply. “If a cause of action has once accrued, or existed, and has been satisfied or defeated by reason of something which has occurred subsequently, that is new matter, which must be pleaded in order to render it competent as evidence.” Evans v. Williams, 60 Barb. 316. In actions upon contracts which do not import a consideration, where the consideration must therefore appear in the complaint, a denial in the answer of such averment forms a complete issue, and hence needs no reply. Where the consideration is implied, as in this case, the implication stands in the place of the alleged consideration in the other class, and an answer averring want of consideration is, in effect, but a denial of this implication; hence no reason is perceived, upon principle, why, under such denial, as complete an issue is not formed in the one case as in the other.

In the one case the answer is a traverse of the expressed, and the other a traverse of the implied, consideration, and a replication would be merely “a traverse upon a traverse.” Stephen on Pleading, 197.

In the case of Goddard v. Fulton, 21 Cal. 430, in construing the nature and effect of code pleadings in a case involving substantially the same question as the one before us, it was laid down that where the allegations of an answer, although stated in an affirmative form, are ha effect only a denial of the allegations of the complaint, they do not constitute new matter within the meaning of the practice act, and therefore, where an answer to a complaint in the usual form on a promissory note admitted the making of the note, but averred that it was made, not on account of any indebtedness between the parties, but for the purpose of being used as collateral security for a debt due a third person from the maker and payee jointly; that the joint debt was subsequently paid, and that the note, having thus become functus officio, should have been canceled, but, through fraud, was taken and held by the payee, and by him transferred to the plaintiff without consideration, it was held by the supreme court of that state that these allegations in the answer wea-e not new matter, which was admitted by a failure to reply; that their only effect was to deny that any obligation of the character stated in the complaint was ever created by the signing of the note, and thus to traverse its essential allegations. In other words, these averments of the answer were deemed to be a mere traverse of the implied consideration of the note sued upon. We are aware that in the numerous discussions of similar vexed questions arising upon the construction of pleadings under the code system, conflicting views are held by text writers and courts of different states, from some of which conclusions are found opposed to that reached by us upon the point under consideration; but upon both principle and authority we feel warranted in holding that the averment of the answer in question amounts to no more than a denial or traverse of the obligatory character of the note as set out and counted upon in the complaint, and which needed no reply in order to form an issue, and a failure to reply was therefore no admission of the truth of' such denial.

It is also assigned for error, that, pending the consideration of the court, upon a motion made in the case,, and which the court had taken under advisement until a subsequent day, said court allowed another case to be called up, heal'd the same and rendered judgment therein. This was no sufficient cause for assignment of error. It was at most a mere irregularity which could not have prejudiced the appellant in the least. The trial in this case was had to the court without the intervention of a jury, while the acl interim proceedings in the other case, as appears from the bill of exceptions and briefs of counsel, were for the purpose of decreeing a divorce between one George Cruming and Mary, his wife; a matter which was probably treated as of unusual importance, and the case possessing, we may suppose, some elements of urgency, since it occupied the attention of the court but a small part of one day. However much such irregularities in the mode and order of proceedings by a trial court are to be condemned, when they operate to delay pending trials or prejudice parties therein, they may at other times be inevitable, or Aven in furtherance of justice, but at all events, are matters of procedure within the sound discretion of the court, and not assignable for error fatal to a judgment rendered, unless an abuse is shown such as has prejudiced or deprived a party of some right affecting' the fairness and verity of the judgment.

The foregoing are all the alleged errors that need be noticed. Judgment affirmed.

Affirmed.  