Martindale v. Hudson

• Decision Date: 31 July 1857
• Citation: 25 Mo. 422
• Parties: MARTINDALE, Respondent, v. HUDSON, Appellant.
• Court: Missouri Supreme Court

25 Mo. 422

MARTINDALE, Respondent,

v.HUDSON, Appellant.

Supreme Court of Missouri.

July Term, 1857.

1. Where the payee of a negotiable promissory note assigns the same, not for value, but fraudulently, with a view to prevent the maker from setting up, by way of set-off, a demand against the payee, the maker may, in a suit against him by such assignee or endorser, plead the fraudulent assignment, and set off such demand.

Appeal from Barry Circuit Court.

The facts sufficiently appear in the opinion of the court.

F. P. Wright, for appellant.

I. The recovery against defendant as garnishee was a good bar to the action, and record should have been admitted in evidence. (Wolf v. Cozzens, 4 Mo. 431.) And so if the note had been settled upon transfer, such settlement was a good bar.

II. The answer charges that the transfers were fraudulently made for the mere purpose of preventing an offset; such transfer, if so made, would not prevent defendant from availing himself of any defense he might have to the note. The evidence tended to prove such fraudulent transfer, and was improperly excluded on that account.

III. If any amendment to the answer was necessary, the court erred in refusing leave to amend.

Cravens, for respondent.

I. The Circuit Court was correct in sustaining the motion of plaintiff to strike out that part of defendant's answer which avers that Thos. Martindale, the original holder of the note, was indebted to defendant upon settlement--the note being given for value received, negotiable and payable without defalcation or discount (R. C. p. 322); and, also, in refusing to let defendant amend a second time where the proposed amendment was a mere repetition of what had been by the court stricken out.

II. The answers of defendant to interrogatories upon garnishment were properly excluded, because the answers of garnishees are not even conclusive against the party at whose instance they are summoned. The judgment upon the answer was all that could possibly be admitted. (R. C. p. 258.)

III. The testimony of witness Logan, in regard to the calculations he had made for Thomas Martindale, the original holder of the note, and defendant, when they attempted to make a settlement, was rightfully excluded, because the court had stricken out that part of defendant's answer which alleged Thomas Martindale's indebtedness to him upon settlement.

RYLAND, Judge, delivered the opinion of the court.

This is a suit on a promissory note made by defendants, dated January 7th, 1856, payable to Thomas Martindale, ten months after date, for six hundred dollars, for value received. The plaintiff states that said Martindale, on the 19th of April, 1856, assigned by endorsement and delivered said note to one Charles O'Kelly. Plaintiff further states that said O'Kelly, on the 13th of September, 1856, assigned by endorsement and delivered said note to the said Thomas Martindale. Plaintiff also further states that said Thomas Martindale, on the 2d day of February, 1857, assigned by endorsement and delivered said note to the plaintiff; he asks for judgment, etc.

The defendants, Hudson and Culton, appeared and filed their answer, in which, after stating that they knew nothing about the first two assignments from Martindale to O'Kelly and from O'Kelly back again to Martindale, they deny expressly that the note was by said Thomas Martindale assigned to the plaintiff for value received; but state that the said note was assigned to the plaintiff to defraud the defendants, and prevent the defendants from pleading an offset to said note, and to defraud them. The defendants then set up in the answer the fact that they had been garnished on execution against said Thomas Martindale in favor of one Passington Packwood, and that judgment had been rendered against them for all that they were owing on said note to said Martindale, and referred to the interrogatories, answers and judgment in the Circuit Court of Barry county. They also state that they do not owe to the plaintiff the said sum of six hundred dollars, or any part thereof. They state that said Thomas Martindale, the original holder of said note, owes defendants, on settlement made before the assignment of said note to plaintiff on the 2d day of February, 1857, one hundred and forty-nine dollars, for which he asks judgment, with interest from the said settlement.

The plaintiff moved to strike out all that part...