Cavitt v. Tharp

Rombauer, P. J.,

delivered the opinion of the «court.

Upon the trial of this cause below the court instructed the jury to find for defendant, which they did. Judgment was rendered accordingly and plaintiffs appeal.

The only question presented is whether under the pleadings and evidence this judgment was a correct conclusion of law.

The action is brought upon two promissory notes executed by defendant. The one was payable to the order of J. Cavitt, and the other to the order of James Cavitt. Neither of the notes was endorsed by Cavitt. The only allegation of title in plaintiffs as shown by *134 their petition is the following averment: “That, on the-day of-, 18 — , said James Cavitt died at the county of Clark, and state of Missouri, and left these plaintiffs as his sole heirs-at-law, and who, by virtue thereof, are now the holders and owners of said notes; that administration was had upon said Cavitt’s estate, and the same has, long prior to the institution of this suit, been closed, and his estate been finally settled.”

The defendant’s answer was as follows: “ Defendant, answering plaintiffs’ petition, admits the execution of the notes sued on; admits the payment endorsed thereon; denies each and every allegation in said petition contained, or any knowledge or information thereof sufficient to form a belief, except as herein admitted. Defendant, further answering plaintiffs’ petition, says that, long prior to the institution of this suit, he paid off and fully discharged the debts mentioned in said notes.”

This answer was denied by replication.

Upon the trial plaintiffs introduced the notes in evidence and rested. The court thereupon, at defendant’s request, gave the instruction hereinabove mentioned.

There was no error in this*. The general denial in the answer of “each allegation in the petition except as herein admitted,” was sufficient to put the plaintiffs upon the proof of their title, notwithstanding that the-defendant set up an independent defence. Sturdevant v. Rehard, 60 Mo. 152.

The plea of payment was not inconsistent with the-denial of plaintiffs’ ownership, nor in any sense an admission thereof. Non constat, but the defendant may have paid the notes to the true owner. Under the decision of Nelson v. Brodhack, 44 Mo. 596 , even the pleas of non estfactum and payment are admissible as consistent pleas in the same answer, on the ground that the proof of one does not necessarily disprove the other: As there was no admission of ownership in plaintiffs, *135 either direct or implied, but, on the contrary, a distinct denial thereof, the plaintiffs had to prove ownership as a condition precedent to their recovery.

The production of the notes furnished no such proof. Possession, by one other than the payee, of a note payable to order, and unindorsed, is not even prima-facie evidence of title in the holder. Dorn v. Parsons, 56 Mo. 601 . There was no evidence that the plaintiffs were the sole heirs of the payee, nor that administration on his estate had closed ; nor that they received the notes as distributees; in fact, we cannot conceive on what theory the plaintiffs claim they were entitled to go to the jury, unless it be on the theory that the plea of payment in the answer was a confession of their title. This claim, as above seen, is untenable.

All the judges concurring, the judgment is affirmed.