Davis v. Travis

98 Mass. 222

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1867
• Status: Published

Opinion

Bigelow, C. J.

We are of opinion that the ruling of the court at the trial was erroneous. Under the provisions of the practice act, a general denial in the answer of the allegations in the plaintiff’s declaration is sufficient to put in issue all the facts necessary to be proved by the plaintiff in order to make out a primd facie case. Gen. Sts. c. 129, § 17. Boston Relief & Submarine Co. v. Burnett, 1 Allen, 410. Estabrook v. Boyle, Ib. 412. In the latter case it was held that such a general denial made it incumbent on the plaintiff to prove the consideration of a note in an action by an indorser against the maker, although there was no express averment in the declaration that the note was given for value. The reason is that such general denial puts in issue every fact th« burden of proof of which rests on the plaintiff, although the production of the note itself is sufficient to sustain such burden.

In the case at bar the defendant Travis, the excepting party as well as the other defendants, inserted a general denial of the plaintiff’s allegations in his answer. This put in issue the question whether his indorsement of the note was for value, so that he was liable to the plaintiff as indorser. Proof of his indorsement on a negotiable note was primd facie evidence of his liability. But it was open to him to disprove it, not as matter of discharge or avoidance of the action, but to meet the case which the plaintiff had established against him by the production of the note, namely, that the note was given to the defendant for value and by him indorsed as payee for value, so that he was liable to the plaintiff or holder. The cases cited by the counsel for the plaintiff only decided that matters in avoidance or discharge must be specially set out in the answer, and, although they might appear in evidence in the course of a trial, yet they could not avail the defendant unless duly pleaded. Those decisions have no bearing on cases like the present, where the grounds of defence rest on a denial of the facts necessary to maintain the plaintiff’s action. Exceptions sustained.