Hyde v. Hazel, 43 Mo. App. 668

43 Mo. App. 668 | Mo. Ct. App. | 1891

Lead Opinion

Ellison, J.

This action, is founded on two promissory notes executed by the defendant to one'Welch-man, and by him indorsed to one Barton, and bydiim transferred to plaintiff since the beginning of the. suit, plaintiff being substituted for Barton. The answer was a general denial, and, “by way of cross petition,” alleged that Barton was indebted to defendant in the sum of $300, that sum “being the agreed rental of a certain cheese factory” for the years 1881, 1882 and 1883, “at a rental agreed on between this defendant and said plaintiff, for $100 per year.”

Evidence of various cash payments were admitted under this answer. This was error. Payment is new matter not admissible under a general denial. Wilkerson v. Farnham, 82 Mo. 672; Smith v. Rembaugh, 21 Mo. App. 390.

So the ‘court erred in admitting testimony under this answer, tending to show that there was an agreement between defendant and B arton, that the rent of the cheese factory was to be applied on either or both of the notes.

So, also, the court erred in admitting any testimony to support the defendant’s cross demand. The notes-were negotiable and indorsed by the payee ; whether before or after due is imm atería!. The demand set up by defendant was in no manner connected with the notes (in so far as the answer discloses), and, not being so, it was not such a claim as could be laid on negotiable notes in the hands of an assignee. Such claim, in order to be of any avail, should be connected with or arise out of the note itself. Gullett v. Hoy, 15 Mo. 399; Barnes v. McMullins, 78 Mo. 260.

The judgment is reversed, and the cause is remanded.

All concur.

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Rehearing

ON MOTION FOR REHEARING.

Ellison, J.

Our attention has been called to the fact that we overlooked an allegation in the petition that “there is due him thereon the sum of $250,” etc., and that such allegation in connection with defendant’s general denial was the ground upon which the trial judge placed his ruling, admitting proof of payments notwithstanding they were not set up in the answer.

It is insisted that this allegation by plaintiff, when met by a general denial, made an issue as to all payments claimed. In other words, the allegation that there was due plaintiff $250, though unnecessary to the proper statement of plaintiff ’ s case, yet when met by a general denial would let in testimony, such as payments, going to show that such sum was not due him. There are authorities which sustain this contention. McElwell v. Hutchinson, 10 S. C. 436; Marley v. Smith, 4 Kan. 183, and the case of Bogie v. Nolan, 96 Mo. 85, lend some color to the position. But the late case of Hudson v. Railroad, 101 Mo. 13, appears to be directly applicable to the point in dispute and settles it against the plaintiff. In that case, as well as in Karle v. Railroad, 55 Mo. 482, the allegation that the plaintiff was injured without any negligence or fault on his part was met by a general denial. Such allegation was unnecessary, as is the allegation in this case that there was due plaintiff the amount of the note. The contention there was, as it is here, that such allegation in the petition when followed by a general denial raised the issue of a contributory negligence. But the court decided that, by merely answering the allegation in the plaintiff’s petition, the defendant can. try only such questions of fact as are necessary to sustain the plaintiff ’ s case.

II. The admission of testimony showing an agreement that the rent of the cheese factory was to be applied as a payment on the note would have been improper, though the court’s theory as to the pleadings had been correct; for in this case the rent of the cheese factory is specially set up by way of “cross-petition” as a subsisting debt due defendant, and appears to be brought in in the nature of a set-off.

The motion is overruled.

All concur.