Newcom v. Ford , 222 S.W. 592 ( 1920 )


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  • The first assigned error does not afford, it is concluded, as ground for reversal of the judgment, and it should be overruled.

    By the second assigned error it is I insisted that the pleadings of the appellee were not sufficient to support a judgment for the defendant. The appellee filed a general denial and a special plea. It can be assumed, in passing upon the assignment of error, that the special plea is subject to a general demurrer, as claimed by the appellant, and *Page 593 that there was a general denial as a legal pleading of the defendant. The general denial would, it is thought, be a sufficient pleading in this case, as in all cases, to support a judgment for the defendant. A general denial operates to put in issue every material fact alleged in the plaintiff's petition. The sufficiency of evidence to support the judgment rendered is another question, required to be raised by an attack on the evidence and not the pleading. In the instant case, though, a material fact alleged in the petition and required to be proven by the appellant was that appellee was in possession of the note "through mistake," and that appellee owed the note and had not paid it. The general denial allowed the appellee to explain his alleged possession of the note, that it was not "through mistake" as alleged. And looking to the evidence, which is not required by the assignment, it appears without contradiction that J. E. Ford, payee of the note, delivered the note to Sam Ford, the maker, in about two weeks after its execution, with the expressed purpose and intention of making an immediate gift thereof. The evidence only went to show an absolute and not a conditional gift. If J. E. Ford made an absolute gift of the note to Sam Ford, then Sam Ford would not be in possession of the note "through mistake," but would be the owner thereof, and would not be liable for payment of the same.

    The judgment is affirmed.

Document Info

Docket Number: No. 2282.

Citation Numbers: 222 S.W. 592

Judges: LEVY, J. (after stating the facts as above).

Filed Date: 5/20/1920

Precedential Status: Precedential

Modified Date: 1/13/2023