Henderson v. Alford

ODOM, J. This is a suit on a promissory note. Plaintiff sues defendant to recover the shm of $760.80 with interest thereon at the rate of 10% per annum from January 16, 1920, until paid, and 10% additional on the principal and interest as attorney’s fees. Plaintiff attaches to and makes a part of his petition a promissory note dated at Junction City, Arkansas, January 16, 1920, for the above amount, made payable to T. B. Headers on and signed “A. I. Alford.” The note is an unconditional promise to pay the said amount on December 1, 1920, with 10% per annum interest from its date until paid, and providing for 10% attorney’s fees. Defendant filed an answer in which he denied all the allegations of plaintiff’s petition, except the one alleging that he is a resident of Claiborne parish, which is admitted. In paragraph five of his answer, he says: “Further answering, your defendant avers that the note attached to plaintiff’s petition has long since been paid and was paid before it came into the hands of the plaintiff herein and that plaintiff had full knowledge of this fact at the time he received said note.” The trial in the District Court resulted in a judgment for defendant, rejecting plaintiff’s demand at his cost, from which judgment he has appealed. OPINION Article 324 of the Code of Practice provides that when a demand is founded on an act under private signatures which is alleged to have been signed by the de [792] fendant, the defendant shall be bound to acknowledge expressly or deny his signature in his answer. Article 325 provides that if the defendant denies his signature the plaintiff must prove the same; and Article 326 provides that the defendant whose signature shall have been proved after hi^ having denied the same shall be barred from every other defense. Reference to defendant’s answer dis closes that he denied every allegation of plaintiff’s petition, 'except the allegation as to his residence, which was admitted. Defendant’s signature to the note sued on was proved on the trial and in fact was admitted by him as a witness in his own behalf.. Plaintiff urges in brief that defendant is barred from urging his plea of payment because he denied his signature which Was proved. It will be noted that defendant has made no specific denial of his signature. Plaintiff’s petition is in four paragraphs. Defendant’s answer is in five paragraphs. In paragraph one he admits he is a resident of Claiborne parish as alleged, but denies all other allegations in said article. Under each of the articles, two, three and four, he writes the word “Denied.” He adds a fifth paragraph in which he pleads payment of the note. We regard defendant’s answer with reference to the allegations of plaintiff’s peti tion as having the effect of a general denial insofar as his signature to the note is concerned. He has complied with the pleading and practice act (Act 300 of 1914), by answering each article of the petition seriatim, but he has gone no further than to say “Denied.” He did not specifically deny his signature. It has' been held that the denial must be express and specific and that even the denial of the execution of a note is not equivalent to - a denial of the signature. Stockton vs. Truxton, 8 La. 224. Ware vs. Elam, 8 Mar. (N. S.) 329. Miller vs. Cohen, 1 La. 478. 'It has also been held that when the signature, not specifically denied, is proved, defendant is not cut off from other defenses. Bennett vs. Allison, 2 La. 419. Hyde vs. Brown, 5 La. 33. Beach vs. Wagner, 19 La. 87. Defendant’s answer being a mere general denial, admits the signature of the note. Hyde vs. Brown, 5 La. 33. Miller vs. Cohen, 1 La. 488. Union Bank vs. Succn., 33 La. Ann. 301. Miller vs. Whitfield, 16 La. Ann. 10. Tesson vs. Gusman, 27 La. Ann. 267. Our conclusion is that defendant did not by his answer cut himself off from urging his plea of payment.