Anderson v. Hance

• Decision Date: 31 October 1871
• Citation: 49 Mo. 159
• Parties: W. W. ANDERSON, ADMINISTRATOR OF MILDRED GENTRY, Respondent, v. JAMES R. HANCE AND JAMES H. GORDON, Appellants.
• Court: Missouri Supreme Court

49 Mo. 159

W. W. ANDERSON, ADMINISTRATOR OF MILDRED GENTRY, Respondent,

v.JAMES R. HANCE AND JAMES H. GORDON, Appellants.

Supreme Court of Missouri.

October Term, 1871.

Appeal from Montgomery Circuit Court.

F. J. Bowman, for appellants.

Henderson & Dyer, and H. C. Hayden, for respondent.

CURRIER, Judge, delivered the opinion of the court.

This suit is founded upon a check alleged to have been drawn at Montgomery City, Missouri, by the defendants, on Gaylord, Leavenworth & Co., of St. Louis, payable to the order of Mildred Gentry on presentation, the check bearing date April 14, 1868. It is alleged, however, that the check was drawn at Montgomery City on the 15th day of May, 1868, and ante-dated as above, and that it was duly presented for payment on the 23d day of the same month, and duly protested for non-payment. This check is sued on as evidencing an original cause of action. The defendants by their answer deny the drawing of the check as alleged, and also deny all the material allegations of the petition. Having thus put in issue the facts alleged in the petition, the defendants then go into a long statement in regard to a check (not alleged to be the same as the original of that described in the petition) which they aver was drawn by the firm of Gordon & Hance on the 14th day of April, 1868; the parties to it, according to the answer, being the same as the parties to the check mentioned in the petition. The answer, however, fails to show any connection between the check described in the petition and that described in the answer; and it is difficult to discover from the pleadings what the latter had to do with the former. For aught the pleadings show, the two checks evidenced two separate and independent transactions. The facts alleged in the answer and relied upon to show negligence in the presentation of the check therein set out as drawn on the 14th day of April, 1868, have no tendency to show negligence in the presentation of the check alleged to have been drawn on the 15th day of the following month. In the present aspect of the case I shall not further consider the question of negligence.

The defendants in their answer denied the drawing of the check sued on, but neglected to verify the denial by affidavit, as required by statute (2 Wagn. Stat. 1046, § 45) when it is intended to dispute the execution of an instrument declared upon as the foundation of the action. The check was therefore read in evidence as though the execution of it had been admitted, and there is no valid objection to the action of the court in allowing the check to be so read. The check is not sued upon as having been executed by a firm, but as having been executed by the defendants under a particular name.

But the answer, as a second affirmative ground of defense, alleged a...