25 Mo. App. 609 | Mo. Ct. App. | 1887
Lead Opinion
Defendant contends that the demurrer should not have been sustained, as it was his right, under that part of the answer disclaiming knowledge or belief as to whether the note was assigned to plaintiff, to prove that the assignment of the note was simply “colorable or fraudulent, and made by collusion for the very purpose of evading and cutting off proper and legitimate off-sets of the defendant.”
That part of the answer amounted to a denial under our statute, but as to whether defendant, under a simple denial, coaid prove a fraudulent and collusive transfer, we need not consider under the view we take of the case. The most that defendant could do, would be to prove,
It will be noticed, that the agreements as to the credits to which defendant says he is entitled were made prior to the execution of the note, and were agreements to allow individual debts to be set off against a joint claim, which could not be done except by agreement of each of the joint creditors.
It has been uniformly maintained in this state, that evidence of such agreements or understandings could not be received to vary or contradict the terms of any absolute promise to pay. Smith, Adm'r, v. Thomas, 29 Mo. 307; Jones v. Shaw, 67 Mo. 667; Rodney v. Wilson, 67 Mo. 123.
We think the matter offered in the answer was no defence to the action, conceding defendant everything he would have been entitled to, as against the original payee. The result is, we affirm the judgment.
Rehearing
On re-hearing.
-In the original opinion, counsel failed to call the court’s attention to the third paragraph'of the answer, and the court, in consequence, overlooked it. By that paragraph, a debt due from the firm, the payees, to defendant is alleged and asked to be allowed as an off-set. This would admit proof of such allegation against the original payees or their assignee, who may have taken an assignment of the note for the fraudulent purpose of preventing such off-set.
The question, then, is, can a fraudulent and collusive assignment be proved under a general denial %
It must be admitted, “that fraud, as a defence, is sustained by- affirmative facts which do not contradict,
It follows that the demurrer should not llave been sustained to that part of the answer referred to above, and the judgment would be reversed and the cause remanded, but for the fact that a remittitur is now offered in this court of $112.93, being the amount in full and interest claimed in that part of the answer. The judgment will, therefore, be affirmed, less the remittitur, and the costs of this appeal will be adjudged against the respondent.