101 Tenn. 538 | Tenn. | 1898
The bill in this cause was filed to collect a note given by defendant to J. 'K. Lassing, and by Lassing indorsed to complainant. It averred merely the making and indorsing of the note, the credits to which it was entitled, and the balance due, with interest, and prayed for decree. The statements of the bill were as direct and concise as a declaration, and might very well have been filed as such in a court of law. It made no further or broader question than such a declaration would have done. The defense, and only defense, was a plea of non est factum. It was in the Code form, and as follows: “The respondent, J. G. Burge, for plea to the bill filed against him in this case, says that the note sued on was not executed by him, or by any one authorized to bind him in the premises, and demands a jury to try the issue here tendered.” The plea was properly verified on oath. Complainant joined issue.on the plea. The record then discloses that respondent moved the Court for a jury, and tendered his issue as follows: “In this cause a jury is demanded to' try the only issue now presented in the suit, to wit, the plea of non est factum. ’ ’ This motion the Chancellor overruled, £ ‘ being of opinion that there was no proper issue tendered.” • A further demand for a jury was made, as follows: “In this cause a jury is demanded to try the issue of fact,
The case, upon the issue of the plea thus formulated and divided, was tried, and the jury found for defendant. Decree was pronounced, and plaintiff appealed and assigned errors. The Court of Chancery Appeals reversed the Chanceller and decreed in favor of the plaintiff, as that Court says the Chancellor should have done, notwithstanding the verdict, upon a motion which plaintiff made after verdict “for decree overruling the plea, notwithstanding the verdict of the jury,” which motion the Court of Chancery Appeals treats as intended to be and as equivalent to a motion for judgment notwithstanding the verdict. The defendant appealed to this Court and assigns errors.
In its opinion the Court of Chancery Appeals, finding that the Chancellor had refused to charge the jury on the subject of ratification of the note by defendant (there being evidence tending to show this), held that such refusal was proper, because no such issue was tendered. That Court then held that the issues tendered were equivalent to the plea, but
But we are, further, of opinion that the issues
These are sufficient' citations to show what defendant may prove. Of course, what he may prove plaintiff may controvert, and thus all these are issues on such a plea. They go to the time of
The decree of the Court of Chancery Appeals is reversed and case remanded to Chancery Court for trial before a jury on the plea of non est factum. Cost of appeal will be paid by defendant, Burge.