Stillens

Appeal from a judgment entered in favor of the plaintiff, after answer filed by the defendant, the judgment being entered without trial as to the facts, but upon the application of plaintiff for decision in its favor upon the pleadings.

Plaintiff brought this action to recover a balance alleged to be unpaid on a promissory note executed by the defendant. The answer admitted the execution of the note and then proceeded as follows: “Admits that the principal and interest on said promissory note remains wholly unpaid. Denies that same is now due and owing, or that any amount is now due and owing.” The admission contained in the first clause of the paragraph quoted was an admission of the ultimate fact as to the nonpayment of the note. The second clause in its terms of denial stated a mere conclusion of law which should be disregarded. (Penrose v. Winter, 135 Cal. 289 , [ 67 Pac. 772 ], and cases therein cited.) Attached to defendant’s answer was a set of allegations, which were termed a cross-complaint. In this portion of the answer the execution of the promissory notes was again admitted, but it was alleged, in effect, that the same were given in exchange for one thousand two…