
    Dexter A. Smith vs. Charles Betcher and another.
    November 4, 1885.
    Striking out Answer as Sham — Affidavits in Support of Answer. — • Where affidavits used in defendants’ behalf, on a motion to strike out an answer as sham, fairly support the answer,’ and negative the charge of bad faith on their part, the motion should be denied.
    Plaintiff brought this action in the district court for Hennepin county, as indorsee for value, before maturity, of certain promissory notes made and delivered by defendants to D. M. Osborne & Co. Defendants interposed an answer, denying upon information and belief that the notes were ever indorsed to plaintiff, alleging that they are still the property of D. M. Osborne & Co., and setting up a counterclaim against the latter. Plaintiff, upon affidavits, moved to strike out the answer as sham, and for judgment. ' On this motion affidavits were presented by defendants in support of their answer. Plaintiff’s motion having been granted by Young, J., the defendants appeal from the judgment so entered.
    
      Woods & Hahn, for appellants.
    
      G. D. Emery, for respondent.
   Vanderburgh, J.

We think the answer in this case is so far supported by the affidavit in behalf of the defendants that the motion to strike it out as sham should have been denied. The evidence shows that the original payees, Osborne & Co., were interested in the collection of the notes sued on long after the time of the alleged in-dorsement thereof to plaintiff, and were conducting negotiations with defendants for their payment nearly up to the time of the commencement of the suit. It is true that it appears by affidavit in plaintiff’s behalf that the notes were indorsed to plaintiff before maturity, and one of the witnesses states that he called the attention of the defendant Brown to the fact that the notes were indorsed to plaintiff, and exhibited them to him. Brown, however, swears that the notes were not shown to him, and that he had never seen them since they were given; that he had never heard of plaintiff till October 18, 1884,, shortly before suit was brought; that he had never heard, or had notice in any manner, of any transfer of the notes till October 4th, nor of the transfer to plaintiff till October 18th, the information being in each ease derived solely from letters from Osborne & Co., or their attorneys, they appearing still to have the notes in their possession, and interested in securing their collection. The defendant Betcher had still less knowledge on the subject. It was not clear, therefore, that the answer, which denied any knowledge or information sufficient to form a belief as to the indorsement 'and transfer of the notes to plaintiff, and set up a counterclaim against Osborne & Co., w'as sham, and interposed in bad faith. Wright v. Jewell, 83 Minn. 505.

. Judgment reversed, and cause remanded for further proceedings.  