Rivera

This is an appeal upon the judgment-roll alone from a judgment rendered in favor of the defendant in an action upon a promissory note. The defendant admitted the execution of the note, but pleaded in his answer that "there was no consideration of any kind or nature therefor, . . ." and that at the time of signing said note the defendant was "laboring under great mental excitement, and that the payee therein threatened to blackmail the defendant if he did not sign the same, and that he signed the same through fear of blackmail and by reason of said fear and not otherwise." The case was tried and determined upon the issues purporting to have been raised by the pleadings of the respective parties, and upon the issues thus raised the trial court found as a fact that the payee of the note "did not at the time of the signing of said note or at any other time part with anything of value for the execution thereof, and that the said note or contract is and was without consideration of any kind or nature." The defense of want of consideration for the execution of a promissory note or other written instrument is new matter, which must be specially pleaded, and it seems to be the rule in this…

The petition for a rehearing is denied. The opinion of the district court of appeal states that "it seems to be the rule in this state that a general averment that *Page 499 the note or contract sued on was executed without any consideration whatever," does not state a good defense, because an averment in that form states a mere conclusion of law. The only one of the cases cited upon this proposition which appears to support it is Gushee v. Leavitt, 5 Cal. 160 , [ 63 Am. Dec. 116 ]. The court in that case was unfortunate in its mode of expression. In view of the well-established rule that an answer which avers, in so many words, that the note sued on was executed without any consideration whatever, states a good defense (9 Cyc. 738), it is hardly to be supposed that the court there intended to decide the contrary. The context shows, however, that what the court really intended to declare was the equally well-established rule that general allegations that the note was obtained by fraud are not sufficient, but that the facts constituting the fraud must be set forth. Sloss, J., Lawlor, J., Melvin, J., and Angellotti, C. J., concurred.