Cavitt v. Tharp

• Decision Date: 27 March 1888
• Citation: 30 Mo.App. 131
• Parties: WALLACE CAVITT et al., Appellants, v. WILLIAM M. THARP, Respondent.
• Court: Missouri Court of Appeals

30 Mo.App. 131

WALLACE CAVITT et al., Appellants, v. WILLIAM M. THARP, Respondent.

Court of Appeals of Missouri, St. Louis.

March 27, 1888

APPEAL from the Clark Circuit Court, HON. BEN. E. TURNER, Judge.

Affirmed.

W. L BERKHEIMER, for the appellants: The plaintiffs must show title to the notes, all of which we have done by alleging in the petition that the payee of the notes, since the execution of the same, died; that an administrator was appointed; that the administration has been closed; that the plaintiffs are the only heirs of the payee of the note. This is not denied except by the general denial (which is not sufficient) especially when followed by a plea of payment, where the defence is, that the plaintiff is not the real party in interest, nor the holder and owner of the note sued on. The facts must be specially pleaded showing how and why the plaintiffs are not the owners and holders of the note. 1 How Prac. 447. The general denial is not sufficient to raise the issue. Green & Meyer's Plead. and Prac., sec. 783; 7 Abb. Prac. 412; 1 Abb. Prac. 185. The plea of payment is a confession and avoidance. It confesses that a cause of action once existed, but is avoided by payment. Green & Meyer's Plead. and Prac., p. 302, sec. 788; Thompson v. Kellogg, 23 Mo. 281; Bauer v. Wagner, 35 Mo. 385; Northup v. Trans. Co., 47 Mo. 435; State v. Williams, 48 Mo. 210; Joy v. Cooly, 19 Mo. 645. A plea of payment is inconsistent with a general denial. Nelson v. Brodhack, 44 Mo. 596. Does not the proof of these facts disprove the fact that the plaintiffs are not the owners of the note, the evidence of the debt which the defendant said he paid? Different defences must be consistent. Coble v. Daniel, 33 Mo. 363; Adams v. Trigg, 37 Mo. 141; Darrets v. Donelly, 38 Mo. 492; Atterberry v. Powell, 29 Mo. 429; Alexander v. Rawlins, 14 Mo. 109; Whelen v. Reily, 61 Mo. 565.

MATLOCK, HILLER & HOWARD and WOOD & MONTGOMERY, for the respondent: The petition does not state facts sufficient to constitute a cause of action. (1) It does not allege that an order of distribution had been made, nor that the notes had been assigned to plaintiffs, which is the only way plaintiffs could acquire title. Rev. Stat., sec. 212; Cha??dler v. Stephenson, 68 Mo. 450; Stagg v. Linnenfelser, 59 Mo. 336; Cowgill v. Linville, 20 Mo.App. 138; Rousch v. Duff, 35 Mo. 312. (2) The heirs have no right of action until distribution is made. State to use v. Fulton, 35 Mo. 323. (3) The notes sued on were made payable to J. Cavitt or order, and not endorsed by him or any one else. The introduction of the notes in evidence would not show title in plaintiffs, and are not even prima-facie evidence of title in them. Dorn v. Parsons, 56 Mo. 601. (4) The allegations in the petition, that plaintiffs are the owners and holders of the notes sued on, are conclusions of law. Jaccard v. Anderson, 32 Mo. 188; Bliss on Code Plead., secs. 232, 407. Our Supreme Court has held that a plea of non est factum and a plea of payment are not inconsistent defences. Nelson v. Brodhack, 44 Mo. 596. (5) The general rule is, that where the answer specifically denies the allegations in the petition, as in this case, the burden is on plaintiff to prove them. Sturdevant v. Rehard, 60 Mo. 152.

OPINION

ROMBAUER P. J.

Upon the trial of this cause below the court instructed the jury to find for defendant, which they did. Judgment was rendered accordingly and plaintiffs appeal.

The only question presented is whether under the pleadings and evidence this judgment was a correct conclusion of law.

The action is brought upon two promissory notes executed by defendant. The one was payable to the order of J. Cavitt, and the other to the order of James Cavitt. Neither of the notes was endorsed by Cavitt. The only allegation of title in plaintiffs as shown by their petition is the following averment: " That, on the _____ day of _____, 18--, said James Cavitt died at the county of Clark, and state of Missouri, and left these plaintiffs as his sole heirs-at-law, and who, by virtue thereof, are now the holders and owners of said notes; that administration was had upon said Cavitt's estate, and the same has, long prior to the institution of this suit, been closed, and his estate been finally settled."

The defendant's answer was as follows: " Defendant answering plaintiffs' petition, admits the execution of the notes sued on; admits the payment endorsed thereon; denies each and every allegation in said petition contained, or any knowledge or information thereof sufficient to form a belief, except as herein admitted. Defendant, further answering plaintiffs' petition, says that, long prior to the...