Eich v. Greeley

Searls, C. This is an action by the plaintiff as indorsee of a negotiable promissory note, made by defend[172]ants, who are appellants here, for three thousand dollars and interest at ten per cent per annum from date of note, viz., July 7, 1893. The note fell due November 1, 1893. The complaint is in the usual form upon a promissory note.

An answer was filed by defendants, to which plaintiff demurred, and also moved to strike out portions thereof.

The motion to strike out was granted' and the demurrer sustained; defendants declining to amend their answer, their default was entered, and judgment rendered in favor of plaintiff in consonance with the prayer of his complaint.

The appeal is from the final judgment, and the sufficiency of the answer as against the demurrer thereto, and the motion to strike out, are the only questions involved in the appeal.

We epitomize in part and quote the residue of the answer as follows: 1. Defendants admit the making of the note to John Eich as payee; 2. Aver that it was indorsed after maturity; 3. Deny there was any consideration for the note beyond two thousand dollars; 4. “The defendants aver that the payee of said note, John Eich, is, and was, before the indorsement of said note, indebted to the defendants for and on account of said note, and the consideration thereof, and as an offset thereto, in the sum of one thousand dollars for money paid, laid out, and expended for and on account of said John Eich, payee of said note, by defendants, at his special instance and request, for labor done and performed for said John Eich while he was the owner and holder of said note, and before the same became due, and which sum of one thousand dollars was, and is, an offset and payment on account of said note; that the said John Eich has not paid the same, though demand has been made on him therefor”; 5. Aver that they paid on account of said note one thousand dollars before the transfer thereof to plaintiff, of which said plaintiff had notice before he received the note; 6. The transfer to plaintiff was without consideration, and was made with [173]the fraudulent intent on the part of the payee and plaintiff of defrauding the defendants out of said sum of one thousand dollars; 7. The plaintiff is the son of John Eich, payee of said note.