Emmert v. Meyer

65 Mo. App. 609 | Mo. Ct. App. | 1896

G-ill, J.

This suit is on a note. The petition alleges: “That the defendant on the second day of May, 1893, by his negotiable, promissory note of that date, by him duly executed at the city of Mound City, in the state of Missouri, promised, for value received, to pay Miller & McPherson, or order, in one year after date thereof ($107.50) one hundred and seven dollars and fifty cents; that thereupon and before the maturity of said note, said Miller & McPherson indorsed the same in writing across the back thereof, and delivered the same to the plaintiff for value, whereby the plaintiff became the owner of said note and entitled to the payment of the amount mentioned. Plaintiff states that he is still the owner of said note and that the same has long since matured and become due and payable, but no part thereof has ever been paid,” etc.

To this petition the defendant answered, admitting the allegations of the petition and setting up as a defense to said note that the same was obtained by a fraud from him by the payees in said note, Miller & McPherson, and that there was no consideration from Miller & McPherson to defendant.

A reply denying the new matter set up in the answer was filed.

At the trial the plaintiff introduced the note and rested. Thereupon defendant went upon the stand as a witness in his own behalf, but plaintiff’s counsel objected to the introduction of any evidence on defendant’s part, on the ground that plaintiff’s cause of action was confessed as pleaded, and there was no issue to try. The court sustained the objection and at plaintiff’s request instructed the jury to return a verdict for the plaintiff for the amount of the note and interest; which was done, and from a judgment thereon defendant appealed.

The sole question is whether or not the plaintiff was entitled to judgment on the face of the pleadings. The circuit court held that he was and we think correctly. The petition alleged and the answer confessed that defendant executed to a third party a negotiable promissory note; that said note was, before due and for value, assigned by the payee to the plaintiff; and that said note was, at the institution of the suit, past due and unpaid. These facts admitted, it was wholly immaterial what fraud said payee may have practiced on defendant at the time the note was executed, since it was admitted that plaintiff was an innocent purchaser for value, before maturity. It is also well established that in the test of pleadings and the legal effect thereof, the courts pay no heed to the prayer for relief or to exhibits filed. Merrill v. Central Trust Co., 46 Mo. App. 236. Such instruments constitute no part of the pleading. The- mere fact that plaintiff filed a reply to the new matter set up in the answer did not increase the importance of such new matter and make it effective to defeat the cause of action set out in the petition and confessed in the answer. Nor was this confession avoided by the introduction of the note in evidence.

Section 2090, Revised Statutes, 1889, has no application here. It was not intended by that section to abrogate the plaintiff’s right to a judgment on pleadings which confessed such right. It is moreover expressly provided in the section following (2091) that nothing contained in said section 2090 “shall affect or impair the right of any bona fide indorsee of any contract in writing made negotiable by the laws of this state, when such instrument shall be negotiated before it becomes due.” The defendant, in the most solemn manner, admitted in his answer that plaintiff was the bona fide holder, for value, of a negotiable promissory note, indorsed to him before due, and that it was unpaid. This shut out all such defenses as defendant sought to interpose in this action.

None of the reasons set out and assigned for reversing the judgment are well taken, and it will therefore be affirmed.

All concur.