Hyde v. Hazel , 43 Mo. App. 668 ( 1891 )

Ellison, J.

This action, is founded on two promissory notes executed by the defendant to one'Welch-man, and by him indorsed to one Barton, and bydiim transferred to plaintiff since the beginning of the. suit, plaintiff being substituted for Barton. The answer was a general denial, and, “by way of cross petition,” alleged that Barton was indebted to defendant in the sum of $300, that sum “being the agreed rental of a certain cheese factory” for the years 1881, 1882 and 1883, “at a rental agreed on between this defendant and said plaintiff, for $100 per year.”

Evidence of various cash payments were admitted under this answer. This was error. Payment is new matter not admissible under a general denial. Wilkerson v. Farnham, 82 Mo. 672; Smith v. Rembaugh, 21 Mo. App. 390.

So the ‘court erred in admitting testimony under this answer, tending to show that there was an agreement between defendant and B arton, that the rent of the cheese factory was to be applied on either or both of the notes.

So, also, the court erred in admitting any testimony to support the defendant’s cross demand. The notes-were negotiable and indorsed by the payee ; whether before or after due is imm atería!. The demand set up by defendant was in no manner connected with the notes (in so far as the answer discloses), and, not being so, it was not such a claim as could be laid on negotiable notes in the hands of an assignee. Such claim, in order to be of any avail, should be connected with or arise out of the note itself. Gullett v. Hoy, 15 Mo. 399; Barnes v. McMullins, 78 Mo. 260.

The judgment is reversed, and the cause is remanded.

All concur.