139 S.W.2d 483 | Mo. | 1940
This is a suit on two promissory notes charged to have been executed by respondent and her former husband, Andrew B. Henderson. The latter made default. We will refer to the parties as they were styled in the trial court. Upon a trial before a jury in the Sullivan Circuit Court, on change of venue, a directed verdict was returned in favor of plaintiff on both counts of the petition. Defendant's motion for new trial was sustained, and plaintiff appealed to the Kansas City Court of Appeals. That court transferred the cause here because the amount involved exceeded its monetary jurisdiction. *1205
The petition is in conventional form. Defendant's answer expressly "admits that she signed the promissory notes herein sued on, and described in the first and second counts of plaintiff's petition." For further answer and as a defense, she alleged fraud in the inducement of the notes, and her incapacity to contract by reason of insanity. Plaintiff introduced the notes in evidence and rested. The defendant took the stand in her own behalf, but the court sustained plaintiff's objection to the introduction of any evidence in support of her answer for the reason it was not verified, and therefore, insufficient "to put in issue any defense." Her counsel sought to amend by verifying the answer, which, on plaintiff's objection, was denied. The court then instructed the jury to find for plaintiff on both notes for the sum of the principal of said notes, together with interest thereon, less any payments found to have been made. Such a verdict was returned, and judgment went accordingly. Defendant's motion for new trial was filed, and sustained, the court assigning as the reason therefor "that the allegations of fraud in the answer are, in the judgment of the court, good as an equitable defense and that the court erred in refusing to permit the defendant to offer evidence thereunder."
[1] Without setting out the answer in haec verba, it is conceded that as to the fraud attempted to be charged, it contains in substance and effect the elements upon which this court, in Security Savings Bank v. Kellems,
True, it has been held that fraud in the execution of the instrument sued on cannot be relied on if the answer is not verified. [Avery Co. v. Powell,
"We are of the opinion that defendant was not entitled to judgment on the pleadings. Plaintiff admits the execution of the release set out in the defendant's answer, but if its execution was induced or obtained under the circumstances claimed in his reply, then there was fraud of such character as to render the release void, and such defense may be made even though the reply is not verified and the execution of the release confessed. [Hammerslough v. Cheatham,
Likewise, it was held in Meeker v. C., R.I. P. Ry. Co.,
[2] Moreover, in determining the sufficiency of the answer, and the action of the trial court in sustaining the motion for new trial on the ground assigned, our approach has been in the light of the rule that "when the sufficiency of an answer is first questioned by an objection to the introduction of the evidence, it will be liberally construed and held sufficient if it can be said fairly to raise a defense." [8 Am. Jur., sec. 964, p. 570.] In this situation, and in view of our *1207 holding, it becomes unnecessary to consider whether the other defense, that of insanity, is open to the attack made upon it. The judgment is affirmed, and the cause remanded. All concur.