75 N.W. 786 | N.D. | 1898
This action is founded upon a promissory note. As a defense to the action, the answer alleges that the note was given without consideration, and that the defendants had suffered damages by the breach of a certain contract of warranty set out in the answer. Against plaintiff’s objection, the defendants were permitted to introduce evidence at the trial tending to support the defense pleaded in the answer. The defendant’s evidence was not contradicted by any evidence offered in plaintiff’s behalf on the merits, and the result was that a judgment in favor of the defendants, dismissing the action, was entered in the court below.
The action is here for trial anew, and the principal question before this court is whether the evidence offered in support of the defense alleged in the answer is admissible under the rules of evidence. It is admitted that defendants executed the note in question, and delivered the same to the payee. The note is made payable to the order of one E. S. Brown, as receiver of the Northwestern Manufacturing & Car Company, a corporation organized under the laws of the State of Minnesota. The complaint alleges that before the maturity of the note, said note, for a valuable consideration, was duly “sold, assigned, transferred, and set over” to another corporation organized under the laws of said state, viz. to the Minnesota Thresher Manufacturing Company. The plaintiff is a corporation organized under the laws of the State of Massachusetts, and the complaint avers that at a date prior to the maturity of the note the said Minnesota Thresher Manufacturing Company assigned, transferred, and set over said note to the plaintiff in trust for certain purposes set out in the complaint. Plaintiff’s contention is that under the law merchant. it occupies the position of a good faith purchaser of the note, in due course, for value, and consequently that it was entitled to recover upon the note, regardless of the defense pleaded in the answer. For the purposes of the decision, we shall concede what the defendant’s attorney strenuously denies, — that the contract between the plaintiff and its immediate vendor was of such a character as would, if the original transfer had been in due course, enable the
The answer, after referring to the allegation of’ the complaint which states that the said note was “sold, assigned transferred, and set over” to the first indorsee, viz. the Minnesota Thresher Manufacting Company, proceeds to state that the “defendants have no information sufficient to form a belief, and therefore deny the same.” This form of denial is not authorized by any provision of the Code, and hence does not operate as a denial. It fails to negative both knowledge and information, and hence does not conform to the statutory denial. Revised Codes, § 5273; Russell & Co v. Amundson, 4 N. D. 112, 59 N. W. Rep. 477; Phil. Code Pl. § 364, and authorities cited; Id. p. 366, note 1; 5 Enc. Pl. & Prac. p. 809. But issue is joined as to the transfer from the payee to the first indorsee in another part of the answer, which incorporates a general denial of all averments contained in the complaint not specifically admitted. This particular averment as to the first transfer of the note not being specifically admitted, the same stands as denied. The answer further alleges that, if the alleged first assignment of the note was ever made in fact, “it was not so assigned in good faith, and for a valuable consideration, or in due course of business.” It appears, therefore, that the averments in the answer, considered together, squarely raise the issue, and apprise the plaintiff that it must assume the burden of showing at some stage of the trial that it received the note in good faith, for value, and in due course of business. At the trial of the action the plaintiff produced the note, and it was received in evidence. Indorsed upon the note were the following words: “Pay Minn. Thresher Mfg. Co. or order, without recourse. E. S. Brown, Receiver, per C. N. Stuart, Atty. in Fact.” With respect to this indorsement the court below has certified as follows: “There was no evidence offered upon the trial of this case tending to show that the above indorsement, purporting to