Higgins v. Cartwright

• Decision Date: 25 April 1887
• Citation: 25 Mo.App. 609
• Parties: JOSEPH C. HIGGINS, Respondent, v. JOSEPH L. CARTWRIGHT, Appellant.
• Court: Kansas Court of Appeals

25 Mo.App. 609

JOSEPH C. HIGGINS, Respondent, v. JOSEPH L. CARTWRIGHT, Appellant.

Court of Appeals of Missouri, Kansas City.

April 25, 1887

APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed, less the remittitur.

Statement of case by the court.

This is an action on a promissory note, the petition being in the usual form.

The note was payable to Crandall & Sinnett, called for eight hundred dollars, due in four months. Upon the back of the note was the following endorsement: " Pay to the order of J. C. Higgins, without recourse on me. Crandall &amp Sinnett." The answer admitted the execution of the note but, " whether or not the same was endorsed to plaintiff, and whether or not plaintiff is the legal owner and holder thereof, the defendant has no knowledge or information sufficient to form a belief."

The answer further stated, " at the time of the performance of the services, which were the consideration of said note and from time to time, up to the date of said note, this defendant did certain work and labor for each of said parties, Crandall & Sinnett, and sold and delivered to each of them, at their special instance and request, certain goods, wares, and merchandise and provisions and feed, etc and, at the time aforesaid, it was distinctly understood and agreed, by and between this defendant and the said Crandall & Sinnett, that the amounts of their respective accounts should be credited upon his indebtedness to them, and when the said note was executed and delivered to the said Crandall & Sinnett, it was so distinctly understood and agreed, at the time of the execution of the delivery of said note, that the aggregate amount of defendant's accounts, and the interest thereon, should be deducted from the amount due upon said note."

The answer then proceeded to set out the various credits to which defendant was entitled under the agreement alleged. The court sustained the demurrer to this answer, and defendant, electing to stand on the answer, appealed to this court.

WILKERSON & MONTGOMERY, for the appellant.

I. The appellant contends that the answer was sufficient to entitle the plaintiff thereunder to show such a state of facts as would make the off-sets pleaded by him good against the plaintiff. The answer avers that, " whether or not the same (the note) was endorsed to plaintiff, and whether or not the plaintiff is the legal owner and holder thereof, the defendant has no knowledge or information sufficient to form a belief." This is the same as a general denial of these facts. Bliss on Code Pleading, sect. 326. As the court says (in the case in 10 Mo.) the recognition of a contrary principle would lead to irreparable wrong. All a man would have to do to cut out any off-set against him on such paper would be to make a colorable assignment of it to some friend, and sue in his name. And the defendant contends that he had a right, under the denial, to show that the endorsement and the assignment of the note was simply colorable or fraudulent, and made by collusion, for the very purpose of evading and cutting off proper and legitimate off-sets of the defendant. Bliss on Code Pleading, sects. 326, 328, 329, and authorities cited; Greenway v. James, 34 Mo. 328. The defence was perfectly good if sustained by the evidence. Baker v. Brown, 10 Mo. 396; Martindale v. Hudson, 25 Mo. 422.

II. The defendant further contends that the off-set, as pleaded, was good against the note in the hands of Higgins. It avers that, at the time of the execution and delivery of the note, it was agreed by the payees, Crandall & Sinnett, that their respective accounts should be credited thereon. So that the note, when delivered, was subject to the contract; it was a contract made at the time of the execution of the note, and a part of the very contract itself.

L. L. BRIDGES, for the respondent.

I. Contemporaneous, oral agreements, cannot be set up to change or defeat a written contract or promise. When the instrument is a promissory note for the direct payment of money, the rule is so well established as almost to become a maxim of the law, and it is not deemed necessary to cite authorities.

II. As to the only remaining point made by appellant, to-wit: That the allegation, in the answer, that defendant had no knowledge or information sufficient to form a belief, as to whether or not the note was endorsed to plaintiff, and whether or not the plaintiff was the legal owner and holder thereof, such an averment is, at best, but a general denial, and is insufficient to put the plaintiff upon proof of bona fide ownership. Such fact must be specially pleaded. Jackson v. Whedon, 1 Smith, 141; Brett v. First Universalist Society of Brooklyn, 63 Barb. 610; Russell v. Clapp, 7 Barb. 482; Savage v. Fire & Inland Navigation Ins. Co., 4 Bosw. 1. The petition averred that the note was endorsed to plaintiff, and the endorsement is admitted in appellant's brief. If the defendant pleads such indorsement to be fraudulent and without consideration, such averment is new matter, and must be specially pleaded, and cannot be shown on general denial. Bliss on Code Pleading, sect. 330.

WILKERSON & MONTGOMERY, on re-hearing.

I. The third paragraph of the answer sets up a set-off of a firm debt, and was well pleaded and constitutes a proper set-off against the notes in the hands of plaintiff. This paragraph of the answer reads as follows: " And the defendant further avers, that the said firm of Crandall &amp Sinnett was the owner of a certain horse which they delivered to the defendant, and bargained with him to keep, feed and pasture the same, and should break the same to work and ride; that the defendant, in accordance with this contract, did take, feed, and pasture said horse for a period of twenty-two months, and did break the same, both to work and ride, and that the reasonable value of the same is eighty-eight dollars, which the said Crandall & Sinnett promised and agreed to pay." All the preceding part of the answer refers to matters of account existing between the appellants and the individual members composing the firm of Crandall & Sinnett, the payees of the note, and seeks to make the account an off-set to the note, on the plea of a promise and agreement on their part, at the...