Manegold v. Dulau,

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Notebook

| Wis. | Jun 15, 1872

LyoN, J.

Tbe answer does not deny any of tbe allegations of tbe complaint, and, therefore, all of tbe material allegations of tbe complaint are to be taken' as true. Taylor's Statutes, 1444, § 33. One of these is, that tbe note was indorsed by the payees thereof to-the plaintiff, who, at tbe commencement of *543tbe action was tbe owner and bolder thereof. Sncb being tbe admission of tbe answer, it is difficult to perceive on wbat principle tbe defendant could be allowed to ignore bis admission of record, and to prove that the note was not indorsed to tbe plaintiff and owned by bim. Indeed, tbe complaint contains all necessary averments, (and tbe answer admits tbeir truth,) to show, prima facie, that tbe ‘'plaintiff was entitled to recover on tbe note, and in tbe absence of any proof of tbe counter-claim, tbe plaintiff was entitled to judgment under tbe pleadings, without introducing any testimony whatever.

But were this otherwise, and should it be conceded that tbe tbe plaintiff is one of tbe firm of E. W. Manegold & Co., named in tbe note, tbe plaintiff would still be entitled to recover upon two grounds.

1. Tbe answer admits that tbe plaintiff paid tbe whole consideration for which the note was given. Tbe averment is as follows: “ That tbe said note mentioned in this plaintiff’s complaint was given for a horse purchased by tbe defendant of tbe plaintiff, and for no other consideration.” This demonstrates that tbe plaintiff was tbe owner of tbe note, and being such owner be could have maintained an action upon it, even though it bad not been indorsed to bim.

2. But if the note was the property of the firm of E. W. Manegold & Co., it was competent for that firm to indorse it to the plaintiff, a member of the film, so as to enable him to maintain an action upon it. It was so expressly adjudged in Merrill v. Guthrie, 1 Pinney’s Wis., 435; and the same doctrine is asserted in Smith v. Lusher, 5 Cow. 688.

Hence it would have availed the defendant nothing bad be been permitted to show that the plaintiff was one óf the firm of E. W. Manegold & Co.

In any view in which the case is presented to our minds, the right of the plaintiff to recover on the note seems indisputable. Tbe judgment of the county court must therefore be affirmed.

By the Court. — Judgment affirmed.