Carpenter v. Reynolds

• Decision Date: 20 November 1883
• Citation: 17 N.W. 300,58 Wis. 666
• Parties: CARPENTER v. REYNOLDS.
• Court: Wisconsin Supreme Court

58 Wis. 666

17 N.W. 300

CARPENTER

v.REYNOLDS.

Supreme Court of Wisconsin.

Filed November 20, 1883.

Appeal from circuit court, Rock county.Hyzer & Clark, for respondent, Edwin F. Carpenter.

J. B. Doe, Jr., for appellant, E. S. Rynolds.

COLE, C. J.

If the portion of the answer stricken out was immaterial or redundant, then there is no error in the order. Sections 2683, 2684, Rev. St. The inquiry then is, was this the character of the answer which was stricken out? Redundancy in pleading is the introduction of matters foreign to or not necessary to the cause of action or defense stated. 2 Bouv. Law Dict. 524. Or, under the Code, redundancy may consist in the needless repetition of material averments, or in the detail of what may be the evidence by which issuable facts are established. Sub. 2, § 2646, and sub. 2, § 2655, Rev. St. In the answer not stricken out the defendant states the circumstances attending the giving of the note; alleges that he executed and delivered it to Bois, Fay & Conkey, to whose order it was made payable. The defendant denies that the note was ever sold, transferred, or delivered to the plaintiff, or that the plaintiff was at the commencement of the action, or ever had been, the lawful holder or owner thereof. It may be that these allegations are not sufficient to put in issue the title or ownership of the note, or to admit proof that the instrument had never been indorsed or transferred to the plaintiff by the payees. There are authorities which seem to lay down the rule that it is not enough to allege that the plaintiff is not the real party in interest, but that the answer should state the facts which show why he is not. It is not obvious what other fact the defendant could state, further than to aver distinctly that the payees had never indorsed or transferred the note to the plaintiff, and that he was not the lawful holder and owner thereof. But this is the necessary implication of the allegations, and it would seem that they were sufficient to enable the defendant to prove, if he could, those facts. But, without deciding that question, the answer further alleges that the note, from the time it was executed and delivered to Bois, Fay & Conkey, up to the eleventh day of July, 1882, was and continued to be the property of that firm, and that on this last-named day the defendant paid the same in full to them, who were the lawful owners and holders thereof. That this answer was sufficient to admit proof of payment to the real owner and holder cannot be doubted. The establishment of such a defense would certainly defeat this action. It would show that the defendant had paid the note to the firm which owned it, and which alone had the clear right to receive payment.

Now, the portion of the answer stricken out contains an elaborate statement of matters which show that the plaintiff, while acting as the attorney of the firm of Bois, Fay & Conkey, obtained the note by committing a gross fraud upon them and the defendant; that he really never had any title to this note,--no right to hold it or sue upon it; that it never had been transferred to him by the payees; and that it had actually been discharged by payment to the rightful owner. But all these facts, which were pertinent, might be proven under the answer which...