Martin v. Pugh

Defendant’s ‘pleading and, proof in action on promissory note. 1. In an action upon a note, proof of payment cannot be received under a generad denial. 2. In such action, under a counterclaim for money had and received, defendant cannot prove payment of usurious interest and have the same allowed, without having alleged specifically the facts showing usury.

APPEAL from the Circuit Court for Milwaukee County. The complaint alleged that, on, etc., defendant executed and delivered to plaintiff his promissory note, whereby, for value received, six months from the date thereof, he promised to pay plaintiff $200; that said note is now lawfully held and owned by the plaintiff, and there is now due and in arrear from defendant to plaintiff thereon $200, with interest from date. The answer admits that defendant executed and delivered to plaintiff the note described in the complaint, for a valuable consideration, but denies generally all the other allegations of the complaint. It also sets up a counterclaim for money had and received by plaintiff from defendant for the use of the latter Eeply, in denial of the counterclaim. Verdict and judgment for the plaintiff; and defendant appealed. argued that all objections to the form of the answer were waived by the reply (8 N. T. 2, 9 ; 10 Eosw. 143); and to the point that the allegation for “ money had and received ” was sufficient, cited 20 Wis. 406; 12 How. Pr. E. 326; 7 N. V. 476. cited 2 Seld. 189; 6 Duer, 392; 21 Barb. 275; 16 N. Y. 297; 8 How. Pr. E. 273. To the point that usury cannot be proved unless alleged, they cited 5 Abb. 411; 15 How. Pr. E. 29; 21 N. Y. 567; 22 id. 472; 10 Wis. 333.