George T. Smith Middlings Purifier Co. v. Rembaugh

21 Mo. App. 390, 1886 Mo. App. LEXIS 193

• Court: Missouri Court of Appeals
• Decided: April 5, 1886
• Status: Published

Opinion

Philips, P. J.

— This is an action founded on a promissory note for the payment of money, alleged in the petition to have been executed by defendant to plaintiff . — a corporation. The answer was simply a- general denial, not verified by affidavit. Plaintiff moved the court for judgment, notwithstanding the answer, as it tendered no matter of defence, not being sworn to. The court sustained the motion, and rendered judgment accordingly. Defendant prosecutes this appeal from said judgment.

Appellant insists that the only effect of want ‘of affidavit to the answer was to admit in evidence the note, without any proof on the part of plaintiff of its execution ; but that under the general denial the note was open to all other defences; such as, for example, that his signature was procured thereto through fraud, or duress, or that he was non compos mentis, and the like.

This unquestionably was the rule of practice in this state prior to 1868. Klein v. Keys, 17 Mo. 326; Carpenter v. Inhabitants of Lathrop, 51 Mo. 498. In Corby’s Exec’r v. Weddle (57 Mo. 458), the court say: “ The general rule is, that when a deed is void ab initio, and not merely voidable, the plea of non est factum is proper; other facts showing the instrument to be void may be given in evidence to sustain such plea.”

Prior to 1868 the statute pertaining to this matter read as follows : “ When any petition or other pleading shall be founded upon any instrument of writing, charged to have been executed by the other party, and not alleged therein to be lost or destroyed, such instrument shall be received in evidence, unless the party charged to have executed the same deny the execution thereof by answer or replication, verified by affidavit.” Sect. 45, Gen. Stat. 1865, p. 676.

In 1868 (Laws Mo. 1868, p. 86) this provision was changed by inserting after the word “destroyed” the following: “The execution of such instrument shall be adjudged confessed, unless the party charged to have executed the same deny the execution thereof by answer or replication, verified by affidavit.” The section thus amended was carried forward into the revision of 1879, section 3653.

It will be observed that, under the section as it stood prior to enactment of 1868, the only effect of the absence of the verification was to admit the instrument in evidence. But when admitted it was subject to those matters of defence available under the general issue, which tended to show that the note or contract was void db initio, such as fraud, duress, general incapacity to contract, or give consent, and the like. All of which went to the question of the making — the execution — of the instrument. But under the present statute, if the party Charged to have executed the instrument of writing fail to deny the fact, verified by affidavit, “the execution of the instrument shall be adjudged confessed.”

Clearly, therefore, under the answer interposed by defendant he was precluded from introducing any proof, the tendency of which would be to call in question the execution of the note, for it stood confessed. What other possible defence, then, was open to him under the general denial? He could not prove payment, nor failure of consideration, nor other fact supervening since the making of the note, for these would be new matters to be specially pleaded. Greenway v. James, 34 Mo. 328; Northrup v. Ins. Co., 47 Mo. 443-4; Williams v. Miller, 56 Mo. 263.

The case of Corby v. Weddle, supra, is inapplicable because the answer was sworn to. Cavender v. Waddingham (2 Mo. App. 555), was not founded on any written instrument, and, therefore, the statute in question had no application to the pleadings.

If, as contended for by appellant’s counsel, the •same defence may be interposed under the general issuo now as before the act of 1868, it is difficult to perceive what office the marked change in language was designed to perform. It might be sufficient to say, as of all similar affirmative, explicit legislative enactments, that the statute must stand for a reason; yet it occurs to me that tlie amendment was probably designed to cut off, as far as possible, frivolous and insincere defences to suits founded on instruments of writing, by compelling the party, who comes in with a concealed hand under the general denial, to purge himself by affidavit before he can secure the delay and produce the annoyance too .often incident to sncli pleas.

It follows, the other judges concurring, that the judgment of the circuit court is affirmed.