Buckley v. Briggs

Napton, Judge,

delivered the opinion of the court.

We have been somewhat at a loss to know what construe tion ought to be put upon the answer, which in this case was stricken out upon the plaintiff’s motion.

If the answer could be understood as a simple denial of the assignment of the notes sued on, either because such assignment was never in fact made, or if made in fact was void in law, the defence ought not to have been disregarded. But the pleading is very obscure. It denies the assignment, but proceeds to show the reasons on which the denial is founded ; and if the order of the answer is inverted and the reasons are put in front, it then stands as a series of allegations, from which a conclusion of the invalidity of the assign *454 ment is drawn, and these allegations will not support the conclusion.

It is alleged that the payee of the note is a foreign corporation ; that said corporation has by its charter no power to deal in commercial paper; that the corporation has and used a seal, and that the assignments were not under seal; and that “ said Peter and Bailey, as treasurer and president of said corporation, had no power to sell or transfer said notes.”

The fact that a corporation has a seal, does not prevent its ' agents from making valid contracts, without the formality of a seal.

If it be true, as alleged, that the charter prohibits the corporation from dealing in commercial paper, that would hardly be construed to extend to receiving and selling notes given for the sale of its lands ; which we infer was the principal object of its creation.

The first allegation that the payee of the note was a foreign corporation, and the last, that H. W. Peter (who was the payee) as treasurer, and Bailey as president, had no power to transfer the title to the note, are contradictory to each other ; but overlooking this, and treating this branch of the defence as intended to assert that, by reason of a provision in the charter which prohibited the company from dealing in commercial paper, [the president] and the treasurer had no right to assign the notes, it is the assertion of a legal conclusion which does not necessarily follow the premises. The language of the charter is not given, nor is the charter made any part of the answer.

The second defence set up in the answer is, that the cor-porators, previous to the public auction of the lots for the purchase money of which the notes sued on were given, had an understanding or agreement among themselves that they would be allowed to bid off any of the lots and afterwards take them or not at their option; that this arrangement had the effect of inflating the prices of the lots, and that the defendant, in consequence, gave a great deal more for them than they were worth. We do not see how this consequence *455 follows. There is no averment that any of the corporators did bid at the sales ; and it,is difficult to see how an agreement never carried out could have had any influence on the bidders.

The last defence urged in-the answer is a proposition to rescind the contract upon condition that the defendant is paid for his improvements.

Where a party intends to defend a suit upon its merits, the addition of defences manifestly untenable has the effect of creating doubts as to his real object, and he ought not to complain that his defence is subjected to a more rigid scrutiny than if stated plainly and simply and singly.

Judge Ewing concurring, the judgment of the circuit court is affirmed. Judge Scott absent.