Higgins v. Cartwright

Ellison, J. Defendant contends that the demurrer should not have been sustained, as it was his right, under that part of the answer disclaiming knowledge or belief as to whether the note was assigned to plaintiff, to prove that the assignment of the note was simply “colorable or fraudulent, and made by collusion for the very purpose of evading and cutting off proper and legitimate off-sets of the defendant.” That part of the answer amounted to a denial under our statute, but as to whether defendant, under a simple denial, coaid prove a fraudulent and collusive transfer, we need not consider under the view we take of the case. The most that defendant could do, would be to prove, [615] as against plaintiff, tlie same facts permissible for him to prove against the original payees of the note, had it not been assigned. The question, then, is, do the facts set upin defendant’s answer constitute a defence to the note against the payees. It will be noticed, that the agreements as to the credits to which defendant says he is entitled were made prior to the execution of the note, and were agreements to allow individual debts to be set off against a joint claim, which could not be done except by agreement of each of the joint creditors. It has been uniformly maintained in this state, that evidence of such agreements or understandings could not be received to vary or contradict the terms of any absolute promise to pay. Smith, Adm'r, v. Thomas, 29 Mo. 307; Jones v. Shaw, 67 Mo. 667; Rodney v. Wilson, 67 Mo. 123. We think the matter offered in the answer was no defence to the action, conceding defendant everything he would have been entitled to, as against the original payee. The result is, we affirm the judgment. Hall, J., concurs; Philips, P. J., not sitting.