
    Manegold vs. Dulau.
    
      Promissory Note —Pleading.
    
    1. In an action on a note by one who claims as indorsee, where tl*e complaint avers and the answer does not deny that the plaintiff is the owner and holder, defendant cannot make proof that the note was never indorsed to plaintiff and is not owned by him.
    2. The answer alleges that the note was given “for a horse purchased by defendant of plaintiff, and for no other consideration.” Meld, that this is also an admission of plaintiff’s ownership of the note,
    3. A note running to a partnership may be endorsed by it to one of its members, so as to enable him to maintain an action thereon. Merrill v. Guthrie, 1 Pinney’s Wis. R., 435.
    APPEAL from the County Court of Milwaukee County.
    Action upon a promissory note executed jointly and severally by the defendant and one William Berland to E. W. Manegold & Co., or order, and indorsed by that firm to the plaintiff. Tbe complaint is in tbe nsnal form of a complaint by tbe indorsee of a promissory note against tbe maker.
    Tbe answer is a counter claim for damages for an alleged breach of warranty on tbe sale of a borse by tbe plaintiff to tbe defendant, for tbe price of wbicb said borse tbe note is alleged to bave been given. Tbe plaintiff replied to sucb counter claim, denying tbe same.
    On tbe trial tbe plaintiff read tbe .note in evidence, tbe court having overruled an objection to its admission on tbe ground that tbe complaint does not state facts sufficient to constitute a cause of action,, and then rested bis case. Tbe defendant thereupon moved to non suit tbe plaintiff for tbe reasons that there was no evidence showing that tbe note was indorsed by tbe payees, or that it was indorsed and delivered to the plaintiff by them, or that tbe plaintiff is the real party-in interest, or that that tbe indorsement was made to tbe plaintiff, by and with tbe consent of bis co-partners, who, .it is assumed, are, together with tbe plaintiff, tbe payees named in tbe note. Tbe court denied tbe motion for a non-suit, and tbe defendant then offered testimony tending to prove that tbe plaintiff was a member of tbe firm of E. W. Manegold & Co., tbe payees named in the note. This testimony was rejected by tbe court, and tbe defendant offered no further testimony. Tbe court directed tbe jury to find for .the plaintiff for tbe amount due on tbe note by its terms, and a verdict was rendered accordingly. Tbe defendant appeals from tbe judgment against him which was rendered upon tbe verdict.
    
      M Fox Cook, for appellant
    
      Johnson & Bietbrock, for respondent
   LyoN, J.

Tbe answer does not deny any of tbe allegations of tbe complaint, and, therefore, all of tbe material allegations of tbe complaint are to be taken' as true. Taylor's Statutes, 1444, § 33. One of these is, that tbe note was indorsed by the payees thereof to-the plaintiff, who, at tbe commencement of tbe action was tbe owner and bolder thereof. Sncb being tbe admission of tbe answer, it is difficult to perceive on wbat principle tbe defendant could be allowed to ignore bis admission of record, and to prove that the note was not indorsed to tbe plaintiff and owned by bim. Indeed, tbe complaint contains all necessary averments, (and tbe answer admits tbeir truth,) to show, prima facie, that tbe ‘'plaintiff was entitled to recover on tbe note, and in tbe absence of any proof of tbe counter-claim, tbe plaintiff was entitled to judgment under tbe pleadings, without introducing any testimony whatever.

But were this otherwise, and should it be conceded that tbe tbe plaintiff is one of tbe firm of E. W. Manegold & Co., named in tbe note, tbe plaintiff would still be entitled to recover upon two grounds.

1. Tbe answer admits that tbe plaintiff paid tbe whole consideration for which the note was given. Tbe averment is as follows: That tbe said note mentioned in this plaintiff’s complaint was given for a horse purchased by tbe defendant of tbe plaintiff, and for no other consideration.” This demonstrates that tbe plaintiff was tbe owner of tbe note, and being such owner be could have maintained an action upon it, even though it bad not been indorsed to bim.

2. But if the note was the property of the firm of E. W. Manegold & Co., it was competent for that firm to indorse it to the plaintiff, a member of the film, so as to enable him to maintain an action upon it. It was so expressly adjudged in Merrill v. Guthrie, 1 Pinney’s Wis., 435; and the same doctrine is asserted in Smith v. Lusher, 5 Cow. 688.

Hence it would have availed the defendant nothing bad be been permitted to show that the plaintiff was one óf the firm of E. W. Manegold & Co.

In any view in which the case is presented to our minds, the right of the plaintiff to recover on the note seems indisputable. Tbe judgment of the county court must therefore be affirmed.

By the Court. — Judgment affirmed.  