Majority
Headnote
In an action against the maker of a promissory note, the complaint averred that the defendant made and endorsed the note, and that the plaintiff was the lawful holder and owner of it. But it did not aver that the note was endorsed to, or delivered to the plaintiff by the defendant. Held that an answer merely-denying that the plaintiff was the lawful holder and owner was not frivolous. That such an answer, to a complaint in that form, did not deny a mere conclusion of law, but the fact of the plaintiff’s title.Motion by plaintiff for judgment, on the ground that the answer was frivolous. The action was on a promissory note which the complaint averred, had been made and endorsed by the defendant; it also averred that the plaintiff was the lawful-holder and owner of it. The answer contained only a denial that plaintiff was such owner and holder.. Held, that this, owing to the peculiar form of the complaint, might fairly be construed not as a denial of a conclusion of law but of an issuable fact; the complaint did not aver that the note had been transferred and delivered to the plaintiff, unless by implication from the averment that he was the owner and holder. The answer must therefore be construed as denying a transfer of the note, and therefore raising a material issue, or the complaint be held to be bad on its face, and upon either supposition, the motion must be denied. It was denied accordingly.