Citizens' Bank v. Closson

Welch, C. J. The code allows a defendant to “ set forth in his answer as many grounds of defense, counter-claim,, [81] or set-off as he may have,” and it contains no limitation upon this privilege, except what is implied in the provision that pleadings shall be verified by oath. There is no provision requiring the several grounds of defense to be technically consistent with each other, or requiring an express admission of the truth of averments sought to be avoided by new matter. It is merely required that the auswer shall be “ verified” by oath. When two alleged grounds of defense plainly contradict each other, they are not susceptible-of verification, because it is impossible for both to be true. The verification of one is the falsification of the other. In such a case, the answer, though sworn to, is not “ verified,” and should, on motion, be stricken from the files, or the defendant be put to his election. Was there any such contradiction or irreconcilable repugnancy between the two defenses set up in this answer ? We think not. Taken together, the two defenses amount to this : That the defendant is ignorant whether he signed the note or not; he does n.ot believe he signed it, and therefore denies it; and that, if he did sign it, his signature was obtained by fraud, and vsdthout consideration. The word “ note,” where'it occurs in the second defense, so far as the question of verification is concerned, can well be understood in the sense of “ supposed note.” It certainly is not consistent with the spirit and intention of the code that a party having one or the other of two good defenses, without the means of knowing, otherwise than from the developments to be made upon the trial, which of the two, in fact or in law, is his true defense, shall, at his peril, be compelled to elect in advance on which he will rely, to the exclusion of the other. When, from the nature of the case, it is rendered uncertain which of two grounds of defense is the true and proper one, it is competent for the defendant, in his answer, to set them both up, provided they will admit of being stated in such form that the answer can be sworn to -without falsehood, and in good faith. Such was the case here, and we think the court erred in putting the defendant to his election. ' [82] We are of opinion also that the court erred in refusing the instruction requested. The proposition asked was good law, as applied to the case. The plaintiff had declared upon the note in its altered condition. If the alteration had been made fraudulently, and without the defendant’s knowledge or consent, the note, as described in the petition, was not his note. Whether, in any such case, an innocent indorsee could recover upon the original note was not the question. The question was whether the defendant made the note in its altered form. The court was undoubtedly Tight in telling the jury that the holder has an implied authority to fill up blanks which appear upon the face of the note to have been intended to be filled up. Rut that was no answer to the request made by the defendant. The character of these blanks does not appear, and the request was to charge the jury as to the effect of filling them up “ fraudulently, and without the defendant’s knowledge and consent.” If the blanks were in a form to imply authority to fill them up, the act of filling them up was not fraudulent, uor against the defendant’s consent, but by his authority. On both these grounds, therefore, we think the district court was right in x-eversing the judgment of the common pleas. Motion overruled.