Hayward v. Grant

McMillan, J. By the Court This is an appeal from a judgment. The plaintiffs made a motion to strike out the defendant’s answer in the action, and for judgment, notwithstanding the answer, or to strike out all that part of said an [167] swer denying the allegation of partnership in the complaint; also, to strike out the remaining portion of said answer, and for judgment, upon the following grounds: First, that said answer is not verified, and is sham and frivolous. Second, that the first portion of said answer specifically referred to aforesaid, contains only immaterial allegations and denials, and is sham and frivolous; Third, that said portion of said answer, last specifically referred to aforesaid, is immaterial, frivolous, irrelevant, redundant, and does not conform to the statute. The motion was granted, and judgment entered for the plaintiffs. The defendant urges that the order for judgment was erroneous. This is the only question in the case. It did not appear from the copy of the answer served on the plaintiff's that the original answer was verified, but the copy was retained by the plaintiffs. The neglect to return the copy served is a waiver of the imperfection, or want of verification. Smith vs Mulliken, 2 Minn., 319. The action is brought upon a promissory note made by the defendant, payable “ to thq order of Hayward, Cartledge & Honoré.” The allegation of the plaintiffs’ partnership contained in the complaint, is in the present tense, and does not relate to the time at which the note was executed, and there is no allegation that the note was executed to plaintiffs as partners. The allegation of partnership is not essential in this case to the plaintiffs’ cause of action, since it does not appear that the note was made to the partnership. The denial of the co-partnership in the answer, in so far as it is sufficient, is limited to the averment in the complaint; and as the right of the plaintiffs to sue does not depend upon the existence of a partnership, does not form a material issue. The subsequent allegation in the answer, of the' non-existence of a partnership of the plaintiff at anytime since 20th of January, 1867, is not only immaterial but is bad, be [168] cause it is limited to a denial of the defendant’s knowledge of' such partnership within this State. • The portion of the answer in reference to the making and delivery of the note is as follows: “ The defendant admits that on or about the time stated in the complaint, he signed a note similar to the note described in said complaint, but denies that he delivered the note described in said complaint, or any note to the said plaintiffs, and alleges that the smne was delivered to "W. J. Butler, at St. Paul, in said county, at the time of its date.” The making of the note described in the complaint, not being denied, is admitted; the delivery of the same to W. J. Butler is expressly averred in the answer. 'We have, then, by the admissions and allegations of the answer, a negotiable promissory note signed by the defendant, payable to Hayward, Oartledge, & Honoré, and delivered by the defendant ■to W. J. Butler. No facts are pleaded affecting the consideration of the note, or changing the presumptions of law between the parties to the note.in any way. The note being negotiable, the law presumes a consideration for it, and in the absence of anything to the contrary, that it passed from the payees to the maker. Hayward, Oartledge & Honoré, therefore, being the payees of the note, and the consideration, prima-facie moqingfrom them, are the owners of the note, and the delivery to Butler, who, so far as the answer shows, is an entire stranger both to the note and the consideration, is a mere delivery in fact, the legal effect of which under these circumstances is a delivery to the payees. Although the complaint contains no direct allegation that the plaintiffs are the payees in the note, yet the surnames of the plaintiffs being the same as those mentioned in the note, and the aver■ment being made in the complaint that the note was delivered to the plaintiffs, the presumption of law is that they are the payees named in the note; and as the facts admitted by the [169] answer, in legal effect do not contradict but support the allegation of delivery in the complaint, the presumption that the plaintiffs are the payees still prevails. As the denial in the answer that the note was delivered to the plaintiffs is coupled ' with admissions and averments as to the real manner in which it was delivered, the denial must be qualified by the admis- ■ sions thus made and upon which it is based. As the real or admitted facts in the answer, in connection with the averments in the complaint, show a delivery in law to the plaintiffs, the denial, if inconsistent therewith, must be rejected as false, or be so qualified as to harmonize with the admitted, facts. The allegation in the complaint is a mixed question oplaw and fact. If we consider the denial in the answer to be s broad as the allegation in the complaint, then it is inconsistent with the facts admitted on the record, and must be false; if we give a construction to the denial most favorable to the defendant, we must regard it simply as a denial of a delivery in fact to the plaintiffs, which is not a denial in substance of the allegation of delivery in the complaint, and does not form or tender any material issue in the case, and is irrelevant. “ Irrelevancy in an answer may consist in statements which are not material to the decision of the case; such as do , not form or tender'any material issue.” People vs. McComber, 18 N. Y., 321. If the denial is false it may be stricken out as sham, notwithstanding the answer is verified. People vs. McComber, 18 N. Y., 321; Conway vs. Wharton, 13 Minn. The averment in the complaint that the plaintiffs are the own■ers and holders of the note is a conclusion based upon the allegations of the making and delivery of the note to the plaintiffs, &c., and the denial of this conclusion, without a denial putting at issue the facts upon which it rests, forms no issue, and is immaterial and irrelevant. The remaining allegations of the answer, that the plaintiffs are residents of lili- ■ [170] nois, and have not now the possession of said note, and that at the time the action was commenced, and before that time, the note was in the hands and possession of the First National Bank at St. Paul, are also immaterial and irrelevant. The facts upon the record showing the making and delivery of the note to the plaintiffs, they are presumptively the owners and holders of it, and a naked possession of the note by a third party is the possession of the plaintiffs. • That portion of the answer, therefore, denying the delivery of the note to the plaintiffs is either sham or irrelevant, and the remaining portions of it are immaterial and irrelevant. The answer does not properly put in issue any material allegation of the complaint, and was properly stricken out. Genl. Stat., Ch. 66, Secs. 82, 90, pp. 460, 461. Judgment affirmed.