Campbell v. . Patton

Bukyvell, J.: The answer of defendant Patton avers that he was induced to sign the negotiable promissory notes sued on in this action by a fraudulent conspiracy between the payee, C. E. Graham, and his co-defendant, Natt Atkinson. The allegations of fraud are not as definite and particular as the rules of pleading would probably require them to be made, but the answer certainly contains enough to relieve it from the charge of being frivolous. It seems intended to raise a serious question, and when that appears the Courts will not readily decide such an answer to be frivolous. Erwin v. Lowery, 64 N. C., 321. If it was filed in good faith and is not clearly impertinent, the defendant is entitled to have the facts alleged in it either admitted by demurrer or tried by a jury. Courts do not encourage the practice of moving for *484 judgment upon the answer as being frivolous. Womble v. Fraps, 77 N. C., 198. But if we consider the motion for judgment in this action for that cause as intended to raise the issue of law that the matters therein alleged, if true, could not affect the plaintiff’s right to recover, there was error in granting it. For what is therein alleged, if proved, would be a good defence to the notes, if they where held by Graham, the payee, and, if proved to the satisfaction of the jury on the trial of this cause, those facts so established will impose upon the plaintiff, who is the endorsee of Graham, the burden of establishing the fact that he is a bona fide purchaser for value and without notice of the alleged fraud in the inception of the notes. Daniel Neg. Inst., § 166; Carver v. Myers, 75 Md., 406 (32 Am. St. Rep., 394, and note); Bank v. Burgwyn, 108 N. C., 62. If it had been averred in the complaint that the plaintiff had purchased the notes for value, and before maturity, and that allegation had been admitted or not properly denied, then it would have been incumbent on the defendant to allege and prove, not only a defence good against the payee and endorser Graham, but also that the plaintiff endorsee had notice of that defence when he purchased them. The plaintiff in his complaint (paragraph 2) does not allege that he purchased the notes before maturity, but only “before the commencement of this action.” His failure to aver a purchase before maturity relieved the defendant of the necessity of making the allegation of notice, but, if on the trial, the pleadings being unchanged, the plaintiff satisfies the jury that he did purchase the notes for value before maturity, the burden of proof will again shift, and it will be incumbent on the defendant to prove that the plaintiff hád notice of his defence. Bank v. Burgwyn, 110 N. C., 267. The second paragraph of the answer, while not strictly according to the requirements of The Code, § 243, seems to us a sufficient denial of the allegations of the second paragraph of the complaint. That denial was itself sufficient to make an issue. . Error.