85 N.J.L. 272 | N.J. | 1913
The opinion of the court was delivered by
The suit was on a promissory no.te of which the following is a copy:
“$2875.00/100. Atlantic City, FT. J., May 29, 1912.
“Two months after date we promise to pay to the order of ourselves at the Marine Trust Company of Atlantic City, FT. J., Twenty-eight hundred seventy-five 00/100 dollars without defalcation or discount, value received.
“St. Jambs A. M. E. Church,
“H. P. Anderson.
“David Campbell, Sec.
“Will r am Bell, Treas.”
This note was endorsed thus:
“St. James A. M. E. Church,
“H. P. Anderson, Pastor,
“David Campbell,"
and a number of other individual names.
There was no substantial question about the genuineness of the various, signatures, and it appeared beyond dispute that the note had come to the plaintiff for full value, in the
The complaint, under the Practice act of 1912, alleged that plaintiff sued upon the note, describing it and annexing a copy of the note and endorsements, and averring that plaintiff «still owns said note” and that it had not been paid. Defendants filed an answer setting up various claims, which will be considered in due course.
At the opening of the trial defendant moved for judgment on the ground set up in the first paragraph of the answer, viz., that the complaint failed to aver that defendant church had endorsed the note (which was made payable to its own order) and delivered it to plaintiff.
The complaint is doubtless faulty in this regard, even though it says that plaintiff «still owns” the note. It seems to be decidedly faulty as to the other endorsers, against whom a recovery was had, in failing to avet that the note was presented for payment and dishonored, and that the endorsers had notice of such presentment and dishonor.
It seems odd that such lapses in pleading should occur as a result of the abolition of the common counts in assumpsit and the substitution of pleadings that must say what is meant; but the frequency of motions addressed to pleadings under the new Practice act justifies the remark that where such books as Bullen & Leake's Precedents of Pleadings are not available (see that rvork, pages 131, 132), the safest course is to utilize the special counts contained in the old form books which, when stripped of their verbiage, will usually be found to answer the purpose admirably. Special counts adapted to this case will be found in 2 Chit. .Pl. (7th Am. ed.) 126, 131. With regard to the present case, it suffices to say that the insufficiency of the complaint as to the endorsers was not raised at the trial, and that as respects the maker, no^ motion to strike out the complaint appears to have been made and any hiatus in the allegations was filled in by those of the reply, from paragraph 4, of which it appeared that there had Been the course of dealing already mentioned between the parties, and that the note was given to plaintiff for money
The next ground is that there was a misnomer of the church corporation set up in the answer, and that the motion for judgment should have prevailed for this reason. But this part of the answer amounted to a plea in abatement, which is abolished by rule 38 appended to the Practice act of 1912, now rule 56 of the revised Supreme Court rules of 1913, requiring in lieu of a plea in abatement that objection be made en motion. It was improperly set up by answer and could not be raised at the tidal. This part of the answer should! have been struck out on proper application.
The next two grounds challenge the sufficiency of the reply by general denial to paragraphs 3 and 4 of the answer. Paragraph 3 amounts to a plea of general issue in assumpsit; paragraph 4 denies that the individual endorsers delivered the note to plaintiff or received any consideration for enforcing the same; asserts that their names were affixed before the maker signed; and alleges that the officers of the church were without authority to bind said church by signing the note. This answer is plainly bad for duplicity, but plaintiff chose to traverse it by a general denial and to join issue on paragraph 3 hy a similar denial. By rule 36 the denial of a material allegation constitutes an issue and no other joinder of issue is necessary. If paragraph 3 put the case at issue on the matters therein mentioned, no reply was necessary, and certainty a denial was no more than a similiter at common law and did no harm; the same may he said of the reply to
Next, it is argued that the court erred in permitting plaintiff to file reply at the trial and in ordering on such trial without giving defendant an opportunity to examine' into and prepare to meet the allegations of the fourth paragraph of such reply. This is the paragraph that gave the detailed history of the loan transaction, as already stated. The court’s action may be fully justified on the ground that the paragraph set up nothing but what was or should have been en-* tirely' familiar to defendant’s counsel and the parties concerned, and that they could not have been in any better position to deny or explain it later than they were in at that time; that defendant’s answer was not filed until two days before the trial; and that the substantial rights of the parties were in no way injuriously affected.
The next point is frivolous. It is that the note was admitted in evidence over the objection that there was a variance, in that the' complaint alleged that the defendant made a note payable to itself, and that the note reads “to the order of ourselves.” A copy of the note was attached to and made a part of the complaint, thereby curing any fault in pleading it, and the court very properly, but doubtless unnecessarily, allowed an amendment to correspond to the language of the note.
• Defendant challenged the admission of proof of the consideration of the note. This was prima - facie unnecessary (.Negotiable Instruments act of 1902, § 24; Pamph. L., p. 589), but it 'certainly did not prejudice the defendant. The next three grounds are governed by the same principle. The objection that it was not competent for the cashier of plaintiff to testify from the company’s books was not taken at the trial. As to the signature cards there was no ground stated for the objection to them or for the motion to strike them out. They were the usual signature cards signed by dealers for identification of signatures and to indicate authority to sign checks, and were competent, if for no other purpose, to show that when the proceeds of the loan had been drawn, the drafts
The next ground of appeal bears on evidence to show the passage of a resolution by flic church congregation, authorizing the raising of the loan. The objection taken at the trial was that the minutes were the best evidence. This is not now argued, and may be considered abandoned. The objection now made is that the trustees, and not the congregation, were the body that could legally authorize the borrowing of the money. If in fairness to the trial court it could be considered, it would in all probability be without legal support. Worrell v. First Presbyterian Church, 8 C. E. Gr. 96; Everett v. First Presbyterian Church, 8 Dick. Ch. Rep. 500; Page v. Asbury M. E. Church, 8 Buch. 114.
The next ground, numbered 8 in the record, is not argued.
The ninth ground is that the court erred in directing a verdict against the endorsers (a) without specifying who were to be; considered such. This is controlled by the statute. Comp. Slat., p. 3737, 17, 63, pi. 6. There was no exception or objection to the charge in this or any other respect, and the question who were endorsers and who were signing as officers of the church was not raised in any way; (b) (c) in imposing liability on them, irrespective of the liability, or indeed the existence of a legal maker. This is correct. Negotiable Instruments act, Comp. Stal., p. 3743, §§ 65, 66; (d) as implying that the parties that signed on the back of the note are liable in the absence of proof that they or any of them participated in the negotiation of the note or its delivery. The defendant’s own evidence showed that they signed for the express purpose of enabling the church to raise the money. As to all the questions raised by this ninth ground of appeal, it may be said that it is not argued or briefed, and is therefore to be considered abandoned.
The remaining grounds of: appeal are directed to portions of the charge that were in no way called to the attention of the trial court.
The judgment will be affirmed.
For reversal — None.
