
    WEBSTER NANCE, Respondent, v. J. P. HAYWARD and MRS. J. P. HAYWARD (Husband and Wife), Appellants.
    Kansas City Court of Appeals,
    November 2, 1914.
    1. BILLS AND NOTES: Pleading: Indorsement. The plaintiff, the holder of a negotiable promissory note indorsed in blank, sued to recover its value from the defendants, the makers. At the trial plaintiff introduced evidence as to the' sale and delivery of note before maturity, but offered none concerning the indorsement. Held, that Sec. 10019, R. S. 1909, has no application to a case where the pleaded cause embraces a title by indorsement and not one resting upon the mere right to have an omitted indorsement supplied.
    2. -: Evidence: Indorsement. It is well settled that the holder of an unmatured negotiable promissory noté is prima facie the owner thereof but to establish such prima facie case it devolves on the holder to prove the indorsement by evidence aliunde the indorsement. '
    
    Appeal from Chariton Circuit Court.— Hon. Fred Lamb, Judge.
    Reversed'.
    
      Gilbert Lamb for appellant.
    The note sued on and offered in evidence being payable to a person other than plaintiff and plaintiff having alleged in his petition that the original payee, John N. Taylor indorsed the note across the back thereof, the burden was upon plaintiff to prove the indorsement of .Taylor to plaintiff by evidence aliunde. Having failed in this be failed to prove tbe allegations of bis petition, failed to establish title to tbe note in himself and tbe demurrer should have been sustained. Reinbard et al. v. Coal Co., 25 Mo. App. 350; National Bank of Commerce v. Pennington, 42 Mo. App. 355; Mayer v. Old, 51 Mo. App. 216; Worrell v. Roberts, 58 Mo. App. 197; Hugumin & Co. v. Hinds et, al., 97 Mo. App. 346; Dunlap v. Kelly, 105 Mo. App. 1; Discount Co. v. Becker, 138 Mo. App. 54.
    
      Roy.■ McKittrick for respondent.
    (1) Because tbe defendant failed to deny execution of tbe note under oath, it stood confessed. Smith Mid. P. Co. v. Rembaugh, 21 Mo. App. 390; McGill v. Wallace, 22 Mo. App. 683. (2) Tbe following allegation in tbe petition that thereupon on tbe 25th day of July, 1913, tbe said John N. Taylor delivered tbe same to plaintiff, for value, and the said John N. Taylor indorsed tbe same in writing across tbe back thereof, is an allegation of a blank indorsement and not a special one, and made tbe instrument payable to bearer and negotiable by delivery. Sec. 10004, R. S. 1909. (3) Tbe note indorsed in blank by tbe payee, John N. Taylor and delivered, for value, to tbe plaintiff, undoubtedly imparts title in tbe plaintiff. Hawes v. Mulholland, 78 Mo. App. 496; Barnard State Bank v. Eesler, 89 Mo. App. 225. (4) Even though tbe note bad been transferred to this plaintiff without indorsement tbe transferee took such title as tbe transferrer had therein. Sec. 10019', R. S. 1909.
   JOHNSON, J.

This is an action on a negotiable promissory note executed and delivered by defendants to John N. Taylor. Tbe petition alleges that before maturity tbe payee delivered tbe note “to plaintiff for value received and tbe said John N. Taylor indorsed the same in writing across the back thereof.” The answer is merely a general denial. A jury was waived and at the trial plaintiff introduced evidence tending to show that before maturity the payee sold and delivered the note to plaintiff for value but offered no evidence to prove indorsement by the payee. The court overruled defendants’ demurrer to the evidence and rendered judgment for plaintiff. Defendants appealed.

The answer confessed the execution of the note (Sec. 1985, R. S. 1909; Smith v. Rembaugh, 21 Mo. App. 390; McGill v. Wallace, 22 Mo. App. 683) but not its alleged indorsement by the payee to plaintiff, the holder, and the general denial was sufficient to* put in issue plaintiff’s title and the genuineness of the pleaded indorsement. [Worrell v. Roberts, 58 Mo. App. 197, and cases cited.]

A blank indorsement was pleaded, since the name of the indorsee was not specified (Sec. 10004, R. S. 1909) and the rule is well settled that the holder of an unmatured negotiable promissory note indorsed in blank is prima facie the owner thereof (Cloud v. News Co., 23 Mo. App. 319; Bank v. Stanley, 46 Mo. App. 440; Hawes v. Mulholland, 78 Mo. App. l. c. 500; Allen v. Harris, 79 Mo. App. 490), but to establish such prima-facie case it devolves on the holder to prove the indorsement by evidence aliunde the indorsement. [Reinhard v, Coal Co., 25 Mo. App. 350; Bank v. Pennington, 42 Mo. App. 355; Mayer v. Old, 51 Mo. App. l. c. 216; Worrell v. Roberts, supra; Hugumin v. Hinds, 97 Mo. App. 346; Dunlap v. Kelly, 105 Mo. App. 1; Discount Cp. v. Becker, 138 Mo. App. 54.]

Plaintiff pleaded title in himself by indorsement and delivery and thereby assumed the burden of proving the existence of the constituent elements of such title (Dunlap v. Kelly, supra). He did not discharge his burden by merely proving that the payee had delivered possession of the note to him for value. While it is true that the negotiable instruments aot (Sec. 10019, E. S. 1909) provides that “where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferrer had therein, and the transferee acquires, in addition, . . . the right to have the indorsement of the transferrer if omitted by accident or mistake,” that statute has no application to a case such as the present where the pleaded cause embraces a title by indorsement and not one resting upon the mere right to have an omitted indorsement supplied.

Plaintiff must recover, if at all, on the cause of action alleged in his petition (Dunlap v. Kelly, supra) and his attempt to recover under the provisions of the statute just discussed is a material departure from his petition and cannot he allowed. The learned trial judge erred in overruling the demurrer to the evidence.

The judgment is reversed.

All concur.  