Thomas v. Caine

CONREY, P. J. The action is on a promissory note dated March 14, 1930, and by its terms due ninety days after April 1, 1930. Judgment was entered in favor of the plaintiff, and the defendants appeal therefrom. Respondent moves to dismiss the appeal as one taken for delay only, and also as being an appeal which presents no substantial question. For a statement concerning section 3 of rule V of this court, see decision this day rendered in Dalton v. Los Angeles College of Chiropractic, a Corporation, et al., ante, p. 196 [13 Pac. (2d) 546], As shown by the opening brief of appellants, the only error relied upon by them arises out of the fact that the court struck out their affirmative defense, and refused to allow them to introduce evidence in support of that defense. The alleged defense was that in the course of the transaction which led to the execution of. the note there was an oral agreement between the parties that the payee would not enforce payment of the note until the defendants should dispose of certain real property acquired by them. There was no claim made by defendants .asserting any fraud in connection with the making of the note, or any want of consideration therefor. The point presented in support of the appeal is so obviously without merit as to justify the inference that the appeal was taken for delay only. (Lindemann v. Coryell, 59 Cal. App. 788 [212 Pac. 47].) The judgment is affirmed. Houser, J., and York, J., concurred.