Bud Finance Co. v. Tessitore

YARRUT, Judge. Defendant appeals from a judgment in favor of Plaintiff for $680.00, plus attorney’s fee and costs, representing the balance due on a promissory note in the original sum of $1080.00, secured by chattel mortgage, which note was reduced by the payment of $400.00 to Plaintiff, as mortgagee, representing amount paid by the insurer when the mortgaged property was destroyed by fire. Defendant’s answer was a general denial only. On the trial of the case, after Plaintiff adduced evidence of the execution and consideration for the note, Defendant sought to prove a special defense, to-wit, fraud in obtaining the note. The Court maintained Plaintiff’s objection to any proof of fraud, since it had not been specially plead, and rendered judgment for Plaintiff as prayed. The ruling of the trial judge in refusing to admit evidence of a special defense not specially plead was proper. For the reasons assigned, the judgment of the lower Court is affirmed; Defendant to pay costs in both Courts. Affirmed.