Cox v. Bishop

Gill, J. The petition in this case alleges the execution by defendant of a contract or promise in writing, which is filed with the petition, whereby said defendant agreed to pay Haines Brothers, plaintiff’s assignors, or order, a certain sum of money, provided said Haines Brothers should on or before January 1, 1891, construct and complete a railroad from Kingston to some point either on the Hannibal & St. Joseph Railroad or the Milwaukee road. By his answer, verified by affidavit, defendant denied the execution of the instrument sued on; and along with such denial, and in another clause of the answer, defendant alleged in defense a failure on the part of Haines Brothers to perform their part of the alleged contract, to-wit, that they did not build the railroad they had agreed to, etc. The court tried the case without a jury, gave judgment for the plaintiff and defendant appealed. [138] On account of the absence of any testimony on a material issue in the cause the judgment herein must be reversed. There was no evidence on the issue of non est factum interposed by the defendant in his answer. The action is founded on an instrument of writing charged to have been executed by the defendant ; the answer verified by affidavit puts in issue the execution thereof, and there was an entire failure to introduce any evidence tending to prove the defendant’s signature, nor was the paper itself offered. The very groundwork, then, of the complaint^was unproved, and hence there should not have been any recovery on the alleged cause of action. The second count in the answer did not confess the execution of the writing sued on. The answer when all read together amounted to this: First, a denial under oath that defendant executed the written contract sued on, and, second, an allegation that Haines Brothers did not build the railroad as therein stipulated. These counts of the answer are not so inconsistent that they cannot stand together. The proof of the one does not necessarily disprove the other; and this, as uniformly ruled in this state, is the test of inconsistent defenses. McCormick v. Kaye, 41 Mo. App. 263. The abstract is sufficient to present the question here considered. Judgment reversed and cause remanded for a new trial. All concur.