Stoutenburg v. Lybrand

Scott, J. The question of the sufficiency of the answer of Stoutenburg, in the court below, may properly be considered under two heads: 1. Does it show such a want of consideration as would avoid the note in the hands of the payee ? And, if so, then, 2. Are such facts stated as make the same defense available against the plaintiff below, who sues as indorsee and holder of the note ? As to the first point, we think it clear, both upon principle and authority, that a contract which provides that the defendant in a proceeding for divorce shall make no defense thereto, is against public policy, and therefore void. The tendency of sucl^ agreements is to mislead the court in the administration of justice, and injuriously affect public interests. Viser v. Bertrand, 14 Ark. 267; Wright’s Rep. 643. Payment of a note, executed upon such illegal consideration, can not be enforced. And as the answer in this case averred that the note in suit was executed solely upon [233] sucb a consideration, it states facts which constitute a good defense as against the payee. In regard to the second point, the answer is good, if it state facts which show that the intermediate indorsees, through whom the note passed to the plaintiff, severally received it, with knowledge of the want of legal consideration; and that it was not transferred to the plaintiff before its maturity. The answer does contain what was no doubt intended as a statement of such facts; but objection is taken to the mode of statement; because, as to some of them, the averments are not direct as to the existence of the facts, but only as to the defendant’s information and belief of their truth; and, as to another, that it is not a statement of fact, but of a conclusion of law. The strictness of the common law rules of pleading would unquestionably condemn such an answer, upon demurrer. But the code has abolished the former rules of pleading, and prescribed, in their stead, others, essentially different. Under the code, demurrers go to the substance and not to the form of pleadings. If a pleading, liberally construed, sets out a sufficient cause of action or defense, though it may be defectively stated, a demurrer to it will not lie. Objection to defects extending only to the mode of statement must be taken by motion. The code requires the allegations of a^ pleading to be expressed in ordinary language, and in determining their sufficiency, these allegations are to be liberally construed, with a view to substantial justice between the parties. Sections 85, 92, 114. Now, though in this case, by giving a strict construction to the language used, it might be said that the party attempts to set up the facts of his information and belief as a defense, yet it is quite apparent, without much liberality of construction, that it is not Ms belief, but the facts believed to exist, upon which he relies for his defense. Any pleading under the code, taken in connection with its proper verification, amounts to nothing more than a statement, under oath, of what the party pleading believes to be true. As a general rule, the proper mode is to state the facts directly and positively in the body of the pleading, and let the verification show that [234] ibis statement is made as matter of belief only. Rut viola tions of this rule which do not affect the substance of the cause of action, or the grounds of defense, can not be reached by demurrer. Under the 118th section of the code, the plaintiff below might, perhaps, upon motion, have had the words “ he is informed and believes ” strioken out from the answer, as redundant. If he thought himself prejudiced by their insertion, this was his proper remedy. Another objection made to the answer is, that in averring that Lybrand, the plaintiff below, was not the owner of the note, the defendant states, not a fact, but a mere conclusion of law. The plaintiff had in his petition alleged, as a material fact, that frnjr days before the maturity of the note in suit, one J. C. Evans being then the owner and holder thereof, for a valuable consideration, assigned and indorsed the same to the plaintiff. In answer to this averment, Stouten-burg says that the plaintiff “ was not, at the commencement of the suit, and is not at the present time the owner of the note in said petition described, and that said J. C. Evans was the holder of said note when the same became due.” Now, if an averment, or denial that a party was at 'a particular time the owner or holder of a note, be the statement of a mere conclusion of law, the petition of the plaintiff below was liable to the same objection which is now maje to the answer. For no facts are stated in the petition which show that Evans, by whose assignment the plaintiff claims title, had any interest in the note or power to assign it, except the averment that Evans was at the time of the assignment the owner and holder of it. The answer is, therefore, good enough for a bad petition. But such allegations are not mere conclusions of law. Ordinarily, in contracts and business transactions, they are regarded as allegations of the facts upon which the legal conclusion rests, as well as of the conclusion itself; and though, in pleadings, such allegations of fact are frequently indefinite, and may, therefore, be objected to by motion, yet they are good on demurrer. So it was held by this court in the case of The Trustees of School Section, etc. v. Odlin, 8 [235] Ohio St. Rep. 293, and we think tha.t decision is in harmony with the requirements of the code. In this case, the answer substantially denies, that Evans did, in good faith, and for a valuable consideration, assign and indorse the note in suit to the plaintiff before its maturity, for it avers that Evans continued to be and was the holder of it, after maturity. And1 if this fact be true, waiving all questions as to the denial of the plaintiff’s subsequently acquired ownership, the note in his hands is subject to all defenses existing against the prior parties. We think the court of common pleas erred in sustaining the demurrer to the answer, and therefore reverse its judgment, as well "as the judgment of affirmance in the district-court, and remand- the case to the court of common pleas. Sutler, C.J., and Peck, Gholson and Brinkerhoee, JJ., concurred.