Hastings v. Gwynn

12 Wis. 671 | Wis. | 1860

By the Court,

Paine, J.

This action was brought to recover the balance of an account, which the complaint alleges accrued against the defendant, in favor of the firm of Heaths & Farringtons, and was assigned to the plaintiff. It also avers that the defendant had notice of the assignment.

The only defense which the answer attempts to set up, is that the defendant had settled the account with one of the Heaths, who was the authorized agent of the firm, and had given his negotiable note for the amount due, which had been transferred to some third person, and was still outstanding. This answer was demurred to, and the court below overruled the demurrer, but for what reason we are unable to perceive. The complaint avers that the account was assigned to the plaintiff in November, 1857, and that the defendant had notice of it. The answer simply denies “ sufficient information to form a belief” wbetber tbis allegation of tbe complaint was true. Tbis denial is insufficient, tbe allegation must therefore be taken as admitted. Tbe denial should have been of either “ Imowkdqe or information ° . sufficient to form a belief.” Van Santvoord’s Pleadings, 436 ; 8 How., 28. Tbe existence of tbe account and its assignment to tbe plaintiff, and notice to tbe defendant of that assignment, were all to be taken as admitted by tbe answer. Clearly, then, it was no defense to say that tbe defendant bad settled with the assignors, without saying that be did so be-, fore notice of tbe assignment. Tbe allegations in tbe complaint, which are admitted, being sufficient to show a prima facie liability, tbe burden was then on tbe defendant, if be sought to show a settlement with tbe assignors, to allege one which would amount to a defense. And tbis be could not do without averring that it was made before notice of tbe assignment. Wbetber tbe answer would have bben sufficient with such an averment, it is not necessary to determine. But we think it is clearly insufficient without it.

Tbe judgment is reversed, with costs, and tbe cause remanded for further proceedings.