10 Colo. 503 | Colo. | 1887
Lead Opinion
The assignments of error based upon the ruling of the court in sustaining plaintiff’s objection to the admission of proof offered by defendant present the only questions we are at liberty to consider, except the question raised by the eighth assignment, for the reason
Upon the trial the defendant offered to prove that “ the note sued upon was procured through and by fraud, and under duress, and without consideration.” The court sustained plaintiff’s objection to the admission of the evidence. Counsel for appellee, in their argument, base their objection to the admission of this evidence upon the provisions of section 11, chapter 9, General Statutes. We do not think that the objection can be sustained upon this ground. This section of the statute provides that, “ if any fraud or circumvention be used in obtaining the making or executing of any of the instruments aforesaid, such fraud or circumvention may be pleaded in bar to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention, or any assignee of such instrument, unless such instrument was negotiated before due.” This statute is identical with the Illinois statute on the same subject, except that the clause, “ unless such instrument was negotiated before due,” is not found in the Illinois statute. This clause renders the statute inoperative to effect the purpose for which the Illinois statute was enacted. At common law the defense of fraud in procuring the execution of a note would not defeat an action by an innocent indorsee before maturity, and the Illinois statute was enacted to permit such defense to be made against an indorsee before maturity in cases where such indorsee was a holder for value, and without notice of the fraud. Taylor v. Atchison, 51 Ill. 196; Hubbard v. Rankin, 71 Ill. 129. In our statute this clause makes an exception to the application of the general provisions of the statute, and this exception takes away the whole force of the statute, so far as it attempts to change the common-law rule in such cases. The statute in no way affects the rules of pleading, but goes to the right to interpose a defense, and the
The amended answer alleges that the note sued upon was executed under duress; that defendant did not receive value for the same; that the note was not assigned for value to the plaintiff before maturity; that long before the execution of said note there was a full and complete settlement by and between the payee of said note and defendant, in connection with the Raven mining claim, out of which this transaction grew. The complaint contained a copy of the note. The answer not being verified, the question arises as to how it is affected by the provisions of section 66 of the code, which provides that “ when an action is brought upon a written instrument, and the complaint contains a copy of such instrument, .or a copy is annexed thereto, the genuineness and due execution of such instrument are deemed admitted, unless the answer denying the same be verified.” In determining what issues, if any, are raised by the answer, the admissions made by reason of the failure to verify it must be considered. By the express provisions of the statute, the genuineness and due execution of the note are admitted. Code, § 66; Watson v. Lemen, 9 Colo. 200.
The first question presented in the consideration of this statute, in its application to this case, is the force and effect to be given to the word “genuineness.” Prior to the code provision it was provided by statute that “no person- shall be permitted to deny, on trial, the execution of any instrument in writing, whether sealed or not, upon which any action may have been brought, * * * unless the person so denying the same shall, if defendant, verify his plea by affidavit.” This statute was repealed by the code. The provisions of the Revised Statutes and the provisions of the code are upon the
It is not necessary to review the decisions which give to the statute the most limited application, but a review of the decisions which give the statute a more enlarged application may assist us in arriving at a correct conclusion in our application of the statute to this case; and such review will, as we think, show conclusively that the statute is not restricted in its application to a denial which goes only to the proper form of the execution of the instrument, and to its genuineness, as the same may appear to be genuine or otherwise upon the face of such instrument. In Hunt v. Weir, 29 Ill. 83, in an action of assumpsit upon a promissory note, the defendants pleaded the general issue, and gave notice that they would prove facts tending to show the non-delivery of the note by them. Held, that the notice went to the execution of the note, and that the evidence of the facts could not be given without plea verified. This decision makes a delivery an essential part of the execution, and this is the question decided; but the opinion seems to go further,
In this state, in the case of City of Central v. Brown, 2 Colo. 703, an action was brought upon certain warrants issued to the plaintiff by persons acting as mayor and clerk of the city. The execution of the warrants was denied by plea verified by affidavits. Held, that the plea was sufficient to put in issue, not only the signatures of the officers, but their authority to issue such paper on behalf of the city. In City of Central v. Wilcoxen, 3 Colo. 566-569, the holding in City of Central v. Brown was approved and followed; the court, in commenting upon the statute requiring a verified plea, saying: “In terms it requires a defendant, if he would deny the execution of the instrument, to file a verified plea for that purpose. Such plea would be a demand that the plaintiff should prove, not only the signatures of the officers who issued the warrants in behalf of the city, but also that they had au
Our code provision is almost a literal cbpy of the California code provision, and this statute was construed in Horn v. Water Co. 13 Cal. 62-69, where it was held that a general denial without verification admitted the genuineness and due execution of the note sued on. In Sloan v. Diggins, 49 Cal. 38-40, in construing this statute it was said: “An instrument is genuine which is in fact what it purports to be.” This seems to be a self-evident proposition. The note in suit purports on its face to be a valid obligation on the part of the defendant for the payment of the sum therein named. To question that it is a binding obligation on the defendant is to question its genuineness; if it was not executed in such a manner as to be binding on the defendant, it is not his genuine note. If the note was signed by the defendant under such duress as is alleged in the answer hei’ein, as between him and the payee it has no more validity than a note with his name forged to it. In Daniel, Neg. Inst. § 857, the learned author says: “Any contract entered into under duress lacks the first essential of validity, — the consent of the contractor, — and bills and notes form no exception to the rule. In 1 Pars. Oont. 392, the same principle is stated.
The duress here spoken of is such duress as renders the contract executed under it of no binding force on the party subjected to it; and, if he is not bound by the terms of the instrument so executed, it is not a genuine instru
The construction we have given to this statute is the only one that can be given to it and give to all the words therein their usual and ordinary meaning. This construction works no hardship to any party. Ho party should be permitted to lightly question the verity of an instrument to which the party to be charged has affixed his signature; and to require the party making the defense that such instrument is not binding _ on him to
It will be observed that we hold the statute to require verification only when the plea challenges the manner of the execution of the instrument. If the signature was forged, if the instrument was never, delivered, or if the signature and delivery were compelled, against defendant’s objection, by threats and duress, the defense is within the statute and must be sworn to. Not so with the defenses of fraud, want of consideration and kindred defenses, connected with the inducement acting upon defendant’s mind in voluntarily executing the instrument, even though thereby the instrument might be rendered of no binding force as between him and the original payee. The statute under consideration is a part of the chapter on pleading. It prescribes a rule of pleading, and perhaps of evidence also, in plaintiff’s interest. The effect of the statute is not only to obviate the necessity of making formal proof of the execution of written instruments as formerly practiced at common law, but to prevent the defendant from relying upon and supporting by proof certain affirmative defenses, unless the same be sworn to.
The allegations of want of consideration and settlement, in the amended answer, must be considered together. The allegation relating to the settlement may be considered as a statement of facts to be relied on to sustain the. allegation of no consideration. This statement of facts shows that the presumed consideration grew out of dealings between the defendant and the payee of the note, in connection with the Raven mining claim. It follows, therefore, that the question of want of consid
The allegation that the note was not assigned to plaintiff for value before maturity admits the transfer; and, if unconnected with the defense of duress and want of consideration, the allegation that the transfer was without value is immaterial. This allegation is also fatally defective under the well-known rule of pleading relating to negatives pregnant.
From this examination of the amended answer we come to the conclusion that no issue was raised by it, and-therefore that the rejection of proof to support the allegations contained therein was not error. It is unneces-. sary for us, in the determination of the questions raised • upon this appeal, to consider the question whether or not the rights of an innocent holder for value of negotiable paper would be affected by duress of the maker of the character charged in the answer, and upon that question no opinion is expressed.
The eighth assignment of error, “that the court erred in not polling the jury upon the verdict,” is not well taken. There is nothing in the record proper showing that the jury were not called when they were brought into court by the officer having them in charge. There is a presumption in favor of the regularity of all proceedings in courts of general and ordinary jurisdiction; and, nothing appearing in the record to the contrary, it must
The judgment should be affirmed.
We concur: St allcup, C.; Macon, C.
For the reasons assigned in the foregoing opinion the judgment of the county court is affirmed.
Dissenting Opinion
(dissenting). I cannot agree to the approval of the opinion of Mr. Commissioner Rising in this case. I dissent from the proposition that an answer of duress, to be available, must be sworn to.
The question of the verification of pleadings, as such, is dealt with in a preceding paragraph of the section construed, and it is there provided generally that when the complaint is verified the answer must also be verified. Beyond this the code lays down no rule respecting the verification of pleadings as such. In practice, proof of the due execution of contracts sued upon was often attended with difficulty, and upon the trial of a cause imposed upon litigants a hardship. Hence the enactment in most of the states of statutes similar to our own, providing that the due execution of contracts sued upon, if not denied under oath, should be deemed admitted. They prescribe a rule of pleading, but their object is to regulate the practice as to a matter of evidence. An answer of duress confesses and avoids; and that it does not come within tlie reason of the statute is plain, for, whether sworn to or not, it admits in full exactly what the statute says shall be deemed admitted. It admits the actual signing and delivering of the contract sued upon. It admits also the genuineness of the instrument; that is to say, that it is the very instrument which was signed and delivered. No burden of proof is laid, as in other cases under the statute, on the shoulders of the plaintiff, unless
Again, it is plain from the language of the statute that it contemplates an answer which traverses. An answer which confesses and avoids is, ex vi termini, without the statute; it denies nothing, but alleges, affirmatively, new matter in avoidance. The answer which the statute provides for is practically the common-law plea of non■ est factum, allowed to be interposed to instruments sued upon, whether under seal or not. This plea, at common law, operated as a denial of the execution of the instrument in point of fact only. Chit. PI. 511; Gould, PI. 300, 301. I see no reason for saying that it presents any other or broader issue under the statute because verified, or because extended to instruments not under seal. The effect, however, of the commissioner’s opinion is to say that the verified answer provided for by the statute does present a broader issue than that presented by the plea of non est factum at common law; that such an answer puts in issue not only the formal execution and delivery of the instrument sued upon, but also its voluntary execution and delivery. If this be true, then it logically and inevitably follows that the defense of duress need not be pleaded specially, but may be shown under a verified answer, which, without more, denies in the language of the statute “the genuineness and due execution” of the instrument upon which judgment is sought to be obtained. At common law the defense of duress could not be given under the general issue, non est factum, because such a defense was inconsistent with the issue. In such case it was the defendant’s act, notwithstanding it was not his voluntary act. Hence it was necessary to plead the defense of duress specially. Gould, PL 300, 301. Under our statute, as construed by the commissioner, this objection no longer obtains. The defense of duress is not only entirely consistent with the issue made by the verified answer, denying the genuineness and due execu
Affirmed.