10 Mo. App. 338 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This is an action by payee against maker, upon two negotiable promissory notes, one payable in ninety days and the other in six months after date. Each note is payable to the order of John A. Turner, and is signed “ W. C. Thomas, Pres. Moniteau Coal & Coke Co.” The answer of defendant is verified by his affidavit. It denies that either of the notes “ are or ever were his notes, acts, or deeds, or that he executed said notes, or either of them, as his notes, acts, or deeds.” The answer further denies that defendant owes or ever did owe to plaintiff the sum mentioned in the note, or any sum whatever.
On the trial, plaintiff testified, in his own behalf that he saw defendant sign the notes. On cross-examination, he stated that the notes were in his handwriting. On cross-examination, plaintiff was asked whether the notes were not signed in the office of the Moniteau Coal and Coke Company ; whether defendant was not president, and plaintiff treasurer and secretary, of that company at the time ; whether the notes were not signed for an indebtedness of the company to plaintiff for services rendered by plaintiff to the
Plaintiff then offered the notes in evidence, and closed his case. Defendant offered an instruction in the nature of a demurrer to the evidence, which was overruled. Defendant then asked permission to file an amended answer setting forth that “ at the time of the execution of the notes sued on, the Moniteau Coal and Coke Company was a corporation duly organized under the laws of Missouri; that plaintiff was the secretary and treasurer of said corporation, and defendant president thereof; that defendant executed both the notes sued on as president and in behalf of said corporation, and not in his individual capacity ; that plaintiff we'll knew at the time said notes were executed, and when plaintiff received the'same, that said notes were the obligations of said corporation, aiid not of .this defendant; that- defendant never received any part of the consideration in his individual capacity; and that the notes sued on are not the notes or obligations of defendant.” This answer was verified by affidavit. But the court refused to permit it to be filed.
Defendant then offered in evidence the certificate of incorporation of the Moniteau Coal and Coke Company, which was excluded by the court. Defendant recalled plaintiff
The court sitting as a jury then found for plaintiff, and judgment was rendered accordingly.
That there was an ambiguity on the face of the notes
Evidence which would have been admissible under the general issue in common-law pleadings may be incompetent under a general denial in the new system. Evidence that confesses the original liability and is matter in avoidance, is not admitted under a general denial, under the Code system, though it was largely admitted under the old general issue. Facts that support the denial need not, however, as a general rule, be specially pleaded under our system ; the rule being that new facts that show that plaintiff ’ s statements are untrue may be proved under a denial, but that facts consistent with the truth of plaintiff’s statements, but which show that he has, nevertheless, no cause of action, are new matter to be pleaded. What is apparently new matter may be admissible under a general denial where the facts constituting new matter do not confess and avoid, but tend to disprove the allegations of plaintiff.
The difficulty is in the application of the rule. Fraud, as a defence, is usually held to avoid the legal effect of the facts alleged by plaintiff, and not to be provable under, a general denial. But in Missouri it is held that fraud in procuring the execution of a note may be proved under a mere denial. Corby v. Weddle, 57 Mo. 452. And in Greenway v. James, 34 Mo. 328, the rule is broadly laid down : ‘ ‘ Where a cause of action which once existed has been determined by new matter which subsequently transpired, such new matter must, to comply with the statute, be specially pleaded; but where the cause of action alleged
The defendant in his answer denied that he executed the notes as his notes, or as his act and deed, and he denied that they were his notes. We are by no means, clear that any more specific allegations were necessary to let in the testimony that was rejected. Nor can we suppose, seeing that the action was payee against maker, and looking at the signature to the notes, that plaintiffs were misled by the answer, or left in doubt as to the purpose of the pleader to put in issue the fact that the notes were given by him, or accepted by plaintiff, as defendant’s notes, and not as »the notes of the company. But when defendant, on ascertaining the view of the learned judge of the trial court as to the meaning and effect of his plea, offered to amend, we think that he should have been allowed to do so upon such terms as might seem proper to the trial court under the circumstances of the case. Had plaintiff claimed a surprise, the cause might have been laid over to a further day in term, or it might have been continued. We see nothing to raise any suspicion of bad faith on defendant’s part in the application. And the refusal to allow an amendment, and the exclusion of all defendant’s testimony, upon a question of pleading as to which there was fair room for controversy, was not, in our opinion, a sound exercise of discretion. The allowance of amendments is largely discretionary; but where it is apparent that the refusal of the amendment may lead to the perpetration of an injustice under the forms of law, and the granting of the amendment on terms can do no wrong; and whez’e, from the chaz’acter of the original pleading, and of the proposed amendment, it seems that defendant desired to raise by his first pleading the issue which he wozild make plain by his amendment, and, at most, there
It is true that delay operates frequently a serious hardship, and speedy justice is a primary object of judicial proceedings. The courts, no doubt, should not allow the course of justice to be trifled with, and a cause is not forever open to new pleadings and new issues. If it were clear that the only proper course of defence in this case was a specific answer, we should think it our duty to affirm the judgment; but whilst we believe that the answer offered as an amendment was more in accordance with the spirit of the Code, as giving fuller notice of the defence to be set up on the trial, we do not regard it as settled, either by reason or authority, that the evidence offered in this case and excluded, so far as it was competent at all, was not competent under the original answer.
We therefore think it our duty to reverse and remand the cause.