Wedderspoon v. Rogers

By the Court, Sawyer, J.: This is an action upon a promissory note by the payee against the maker. The complaint avers the making and delivery of the note by the defendant to plaintiff, setting out a copy, then avers “ that plaintiff is now the owner and holder of said promissory note,” that no'part had been paid, etc., and prays judgment for the amount due. The complaint is verified. The answer denies “ upon information and belief that the plaintiff is the owner of the note,” but does not deny any other allegation. It then affirmatively avers on information and belief, that one R. S. Corning was, at the commencement of the action, and still is, the owner of the note, and that the action is not prosecuted in the name of the real party in interest, but that the plaintiff holds said note as the agent of Corning. But it avers no facts showing Corning to be owner, or out of which the transaction arose. On the pleadings, and an affidavit directly and positively contradicting the general averments of the answer, and stating further that the note was originally given on account of an indebtedness due from defendant to Corning, but that said indebtedness had already been transferred to the plaintiff by said Corning, in part payment for money advanced by plaintiff to Corning, the plaintiff moved to strike out the answer as sham and irrelevant, and for judgment. Defendant replied by affidavit stating “ that he believes the averments contained in his answer herein to be true,” that the matters were set up in good faith, and that he expects to support the averments by competent proof, but without stating any facts upon which his belief is based, or contradicting directly, or even upon [572]information or belief, any of the specific facts stated in plaintiff’s affidavit as to the consideration of the note, and the assignment thereof to plaintiff by Corning before the note was given.

The Court struck out the answer and entered judgment for plaintiff, and defendant appeals. We think the plaintiff entitled to judgment. The averment, that the plaintiff was the owner of the note, is not the averment of an issuable fact. It is but the averment of a conclusion of law, which followed from the other facts averred. It was immaterial and might have been omitted. The conclusion of law necessarily followed from the other facts stated. The denial of this averment of a conclusion of law did not raise a material issue. The material facts were all admitted, and judgment must necessarily have followed, notwithstanding the denial of the legal conclusion. Upon this point, Mr. Justice Duer, in Gatlin v. Gunter, l'Duer, 265, says: “ It has, however, been insisted, that no amendment of the answer was necessary in the present case to let in the defense of usury, but that, striking from the answer all the specific allegations which the proof failed to sustain, the defense was admissible under the general denial which the answer contains, that the plaintiff was the lawful holder and owner of the note and that the defendant was indebted to him thereon in the sum claimed to be due or in any sum whatever. But these positions 'seem to us so manifestly groundless that, had not the defense of usury been specially pleaded, the answer would, in our opinion, have been plainly frivolous, and the plaintiff entitled to an immediate judgment. The answer controverts no material averment in the complaint. It admits the making and transfer of the note, and its possession by the plaintiff, and these are all the facts which the plaintiff was bound to aver, and, if denied, to prove, in order to maintain his action. Hence the denial in the answer, that the plaintiff was the lawful owner of the note, and that the defendant was indebted to him thereon, raised no issue of fact whatever, but was a denial merely of a conclusion of law which, as such, the Judge upon the trial, so far from admitting evidence under it, was bound to disregard