Henning

An action having for its basis a promissory note of the defendant, payable to the plaintiff’s assignor, resulted in a judgment in favor of the plaintiff, from which said defendant appealed.

Following proof of the note and indebtedness, which were not denied, an instrument was offered in support of the allegation that “prior to the commencement of this action the claim sued upon was duly and regularly assigned to the plaintiff herein”. Objections were interposed by the defendant that the written assignment had not been pleaded as required by section 447 of the Code of Civil Procedure, which provides that “if the plaintiff relies upon a written instrument, in whole or in part, that fact shall be pleaded”. It is argued that to permit the introduction in evidence of a written instrument without allegation according to said section would constitute reversible error. However, since it is not contended that the fact of assignment was not pleaded, nor that the offered document was incompetent evidence thereof, such objection was untenable in the instant case. (Meyer v. Foster, 147 Cal. 166 [ 81 Pac. 402 ].)

Letters of the defendant to the payee amounting to admissions and a guarantee of…