Elder v. SmithElder v. Smith
- Reporters:
- ,
- Before:
- Hanna
Smith, assignee of Smith, sued Elder on two promissory notes. Answer: 1. Payment. 2. Set-off. 3. That *467the indorsement by the payеe to the plaintiff was without consideration, and for the purpose оf avoiding answers to interrogatories—the payee’s residence and location being uncertain and difficult to find, so as to take his deposition—and that plaintiff has no interest in said notes. Demurrer to the said third paragrаph sustained. We are of opinion that there was no error in this ruling.
It is often еxceedingly difficult, in view of the many shades of decision upon the question, to determine whether an answer sufficiently controverts the ownership of а note by the plaintiff, or tenders an issue as to the fact of whether he is the real party in interest. See, upon these points, Yansant. PL, pp. 109,421, and 478, and cases in the New Yorh Courts therein cited. In the case at bar, three proрositions are included in said third paragraph,‘namely: 1. The assignment was without consideration. 2. It was made to avoid answering interrogatories, and in the аttempt to elude giving testimony. 8. The plaintiff had no interest in the note.
The complaint does not, by special averments, allege the ownership оf the note to be in the plaintiff, but simply avers that the defendant executed the note to the payee, who indorsed it to the plaintiff, and that it remаins unpaid. The conclusion of law from the facts thus averred iii the comрlaint, would be that the title to the note, the legal ownership thereof, was in the plaintiff To .present an issue, it is not enough merely to deny this legal cоnclusion, but the facts upon which it rests must be controverted, or others, incоnsistent therewith, affirmatively shown.
A man might make a gift of a promissory note, we suрpose ; therefore, the averment that the indorsement was without cоnsideration was not, of itself, sufficient.
The general allegation that the рlaintiff had no real interest, can not, alone, be taken to controvert the conclusion of law arising from the statements of the plaintiff. Nor аre these two propositions, the first and third contained in the answer, when viеwed in connection, a valid presentation of an issue upon the quеstion of real interest; for the reason that it is. shown that the interest passеd, by the assignment, from the payee to the assignee. But even if it should be admittеd that,, *468by the subsequent averment in the answer, it was sufficiently shown that it no longer remained in the said assignee, there is nothing, so far, showing in whom such interest then vested, аn<^ Hiere^ore ^ pleading would, upon that point, be fatally defective.
The second proposition of the answer is stated by way of giving a reason for the indorsement without consideration; and certainly, if we should conclude that by such statements, when taken together, the real interest is still in the рayee, we can only arrive at that determination by inference drаwn from these statements, and that such fact is argumentatively affirmed in the answer.
We can not so infer, and conclude. It may be true, that the indorsement wаs made without consideration, for the purpose indicated, and that, аt the time of pleading, the plaintiff had no real interest; and yet the plеading would be bad, because it does not show, either by positive avermеnt, or by the statement of such facts as would show, in whom that interest at the time vеsted: whether it had passed from the assignee, or still remained in the payee, notwithstanding the legal conclusion from the facts contained in the сomplaint. Wo are pointed to the case of Swift v. Ellsworth, 10 Ind. 208. That case is distinguishable from the case at bar, in this: that it was there directly averred that the rеal interest remained in the payee, and the facts and circumstances were affirmatively shown.
Per Curiam.The judgment is affirmed, with 5 per cent, damages, and costs.