Blackman v. McAdams

• Decision Date: 08 June 1908
• Citation: 131 Mo. App. 408,111 S.W. 599
• Parties: BLACKMAN v. McADAMS.
• Court: Missouri Court of Appeals

111 S.W. 599

131 Mo. App. 408

BLACKMAN v. McADAMS.

Kansas City Court of Appeals. Missouri.

June 8, 1908.

1. PLEADING—ALLEGATIONS OF NEW MATTER IN ANSWER—REPLY—STATUTES.

Under Rev. St. 1899, § 607 (Ann. St. 1906, p. 640), providing that, where the answer contains new matter, plaintiff shall reply thereto within such time as the court by rule shall require, etc., a plaintiff in an action on a note may, on the answer setting up new matter by alleging defendant's discharge in bankruptcy, plead in avoidance, by way of reply, such matter as will put the case without the operation of the discharge, within Bankr. Act July 1, 1898, c. 541, § 17, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), as amended in 1903 (Act Feb. 5, 1903, c. 487, § 5. 32 Stat. 798 [U. S. Comp. St. Supp. 1907, p. 1026]), providing that a discharge in bankruptcy shall release the bankrupt from provable debts, except liabilities for obtaining property by false pretenses, etc.

2. SALES—FRAUDULENT SALES—RIGHTS OF SELLER.

Where property is obtained from another by false pretenses, as through a contract of purchase, the contract is voidable only at the election of the party defrauded, and he may elect to stand by the contract and allow the sale to become absolute, or he may repudiate the sale.

3. BANKRUPTCY—DISCHARGE OF BANKRUPT— EFFECT.

Where a seller, after learning of the fraud of the buyer, accepted part of the price in cash, and a note of the buyer for the balance, and there was no fraud on the part of the buyer inducing the acceptance of the note, the note was not a liability for obtaining property by false representations, within Bankr. Act July 1, 1898, c. 541, § 17, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), as amended in 1903 (Act Feb. 5, 1903. c. 487, § 5.32 Stat. 798 [U. S. Comp. St. Supp. 1907, p. 1026]), excepting such debts from the discharge of the bankrupt's liabilities.

Error to Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by M. G. Blackman against I. R. McAdams. There was a judgment for defendant, and plaintiff brings error. Affirmed.

John C. Nipp and J. H. Bremmerman, for plaintiff in error. Geo. W. Littick, for defendant in error.

ELLISON, J.

This is an action on a promissory note, executed by defendant to plaintiff on March 30, 1903, due on September 1, 1903, for the sum of $322.50 with 8 per cent. interest. The petition was an ordinary declaration on the note. The answer set up defendant's discharge in bankruptcy in the proper United States District Court. Plaintiff filed a reply to the answer, in which he alleged that the note was a liability arising by reason of defendant having obtained from him a lot of cattle by means of false pretenses and false representations. Defendant thereupon filed a motion for judgment on the pleadings, which was sustained by the circuit court, and plaintiff has brought the case here.

Section 17 of the amendments of 1903 (Act Feb. 5, 1903, c. 487, § 5, 32 Stat. 798 [U. S. Comp. St. Supp. 1907, p. 1026]) to the bankrupt law (July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]) provides that: "A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as * * * (2) are liabilities for obtaining property by false pretenses or false representations. * * *"

The first point made is that the matter alleged in the reply should have been set up in the petition. We think not. The answer set up new matter in alleging defendant's discharge from the debt in bankruptcy. It was then proper, in avoidance of the discharge, to plead, by way of reply, such matter as put the case without the operation of the discharge. This is the approved method of pleading in...