I concur in the judgment for the following reasons: —
The due execution of the note in suit, and its assignment to plaintiff, and that the latter is the "owner and holder" thereof, is admitted by the defendants' failure to deny the same. Inasmuch as the execution of the note and ownership in plaintiff were admitted by the pleadings, if the case had been submitted without any evidence the plaintiff would have been entitled to a judgment for the principal and interest of his note. The burden was on defendants to prove their affirmative defense as to the trust fund. It was also on them to prove their affirmative defense of payment. It is held that while the plaintiff must allege nonpayment in his complaint, yet he need not prove this negative allegation, but the defendant must prove payment, if he relies upon it as a defense. The admission of the execution and ownership of the note established an indebtedness, and such indebtedness would be presumed to continue until it was shown to have been extinguished. (Melone v. Ruffino, 129 Cal. 514, [74 Am. St. Rep. 127,62 P. 93]; Thompson v. Thompson, 140 Cal. 545, [74 P. 21].)
There being no evidence in the record, it is impossible for us to determine whether payment or the other affirmative defense was established at the trial, and unless we can determine from the record that there was evidence given necessitating findings in defendants' favor upon those defenses we cannot disturb the judgment for want of such findings. It will be presumed in support of the judgment that there was no evidence offered in support of those affirmative defenses. (De Tolna v. De Tolna, 135 Cal. 575, [67 P. 1045]; Woodham v.Cline, 130 Cal. 497, [62 P. 398]; Winslow v. Gohransen,88 Cal. 450, [26 P. 504].) "The rule, then, is that an appellant from a judgment against him in the court below will not be heard to complain that the court failed to find upon some issue tendered by him, unless he brings up the evidence and thereby shows that he litigated that issue in the trial court and introduced evidence upon the issue which would have justified a finding in his favor. One reason for this rule is that, since he had the affirmative upon that issue, if he introduced no evidence, the finding would necessarily have been against him, and, therefore, he is not injured by *Page 715 the failure of the court to make a finding." (Estate ofCarpenter, 127 Cal. 587, [60 P. 162]; Eva v. Symons, 145 Cal. 202, [78 P. 648].)
Of course, a finding as to what was "due on the note" would have been a mere conclusion of law and entirely unnecessary. The amount due is a mere matter of calculation on the face of the note, the due execution of which and assignment to and consequent ownership in the plaintiff have been admitted by the pleadings. Of course, the defendants cannot be heard to complain that the judgment against them is for less than such computation shows to be due.
Appellants also complain that the findings of the court were entirely outside the issues, and this seems to be the fact. But such findings should be entirely disregarded, and cannot be ground for reversal. The judgment is within the case as made by the complaint, and rests for support on the admission of the answer that the note was duly executed and is now in the hands of the plaintiff as the owner thereof; and these findings outside the issues are entirely unnecessary to the support of the judgment, and may be treated as mere surplusage.
I am therefore of opinion that the judgment should be affirmed as it stands, and upon this I concur in the judgment as reduced, upon the theory that the greater includes the less.