By the Cowt

The complaint in this case alleges that the Defendants by their firm name made their promissory note in writing of a certain date, whereby they promised to pay to the Plaintiffs or order, five months after date, three hundred and seventeen dollars, and then and there delivered the samS to the Plaintiffs; that the note has since become due ; that only the sum of one hundred dollars has been paid thereon ;■ that the Plaintiffs are now the holders and owners thereof; and that the Defendants are indebted to them thereon in the sum of two hundred and seventeen dollars, with interest, &c., for which the Plaintiffs demand a judgment.

Two of the Defendants answer separately, and “ deny that by the promissory note in the complaint mentioned, the Defendants in the action, or either of them, ever promised do pay the Plaintiffs or their order, the sum alleged in the complaint or any sum whatever.”

The Plaintiffs thereupon applied for judgment upon the answer, on the ground .that the same was frivolous and insufficient.- The Court, upon the hearing of the application, ordered judgment to be entered for the Plaintiffs as for want of an answer ; and the Defendants appealed from this order.

It is evident, from a perusal of the opinion of the judge *388below, that be was entirely mistaken as to tbe denials of tbe answer. He bases bis decision principally, if not wholly, on tbe ground that tbe Defendants merely denied that they, tbe Defendants who answered, or either of them, ever promised, as stated in tbe complaint. And this, be very properly remarks, is denying what was never averred by tbe Plaintiffs, and leaves every material allegation of tbe complaint admitted. It will be found however that this is an erroneous statement of what tbe answer denies. It denies that tbe Defendants m the action promised, &c., not tbe Defendants who answer. This denial is broad enough to include, and was doubtless intended to include all tbe Defendants, and completely disposes of tbe objection upon which tbe decision of tbe court below seems to have been predicated.

Tbe Defendants however insist that tbe decision was proper, although tbe correct reason therefor may not have been given; and this brings up tbe question whether tbe answer presented an issue that should have been tried.

Tbe complaint, as before stated, alleges that tbe Defendants made and delivered to tbe Plaintiffs their promissory note in writing of a certain date, “ whereby they promised to fay to said Plaintiff's or order,” &c. Tbe portion italicised is an averment that tbe written promise was to pay to tbe Plaintiffs or order, — in other words, that tbe Plaintiffs were the payees of tbe note. Was this allegation material? We are clearly of opinion that it was material; because if tbe Plaintiffs were not tbe payees of tbe note — if tbe promise was not made to them, — it is difficult to see bow they could maintain an action thereon against tbe makers, without further allegations. Eor if tbe promise was to pay any other person (and tbe effect of tbe Plaintiff’s motion for judgment notwithstanding tbe answer is to admit that the promise was not made to the Plaintiffs,) then tbe delivery to tbe Plaintiffs would have been for tbe use and benefit of tbe payee, whoever be was, and any right which they could acquire against tbe maker, must be through tbe medium of such payee; and this would have to be shown by proper averment. It was therefore essential to tbe Plaintiff’s right of action against the makers, that they should show their connection with tbe *389note delivered to them. Unless they were either the payees, indorsees, or it had otherwise been transferred to them, they had no action against the Defendants. They therefore alleged substantially that they were the payees; and the Defendants traverse the fact in the very words of the allegation. Can it be that the issue thus tendered and accepted is immaterial; or that the Plaintiffs would establish the issue on their side by the production of a note in all respects like that declared on, save that it was not payable to them or their order ?

Let us suppose that each allegation of the complaint in this action had been put in issue, and that on the trial the Plaintiffs had made full proof of the execution and delivery of the note to the Plaintiffs, but when they came to offer the note itself in evidence, it was found that it was not payable to the Plaintiffs, but to some one else, would it have been seriously contended that the Plaintiffs could have recovered? Not even if the note had been regularly indorsed to them unless an amendment of the pleadings was permitted so as to make them conform to the facts proved. At common law such a variance between the pleadings and proofs would have been fatal to the Plaintiffs’ right of recovery, and we do not see that they are in any better position under our system of pleading. They are required by the code to state the facts as they exist; and they would have to connect themselves with the payee by sufficient.allegations and proof of indorsement or other legal transfer, before they could properly recover.

Again, as the effect of the Plaintiffs’ application for judgment on the pleadings, is to admit the truth of Defendants’ denials, let us suppose that the Plaintiffs had declared in terms that the Defendants on, &c., made their promissory note in writing, and delivered the same to the Plaintiffs, but did not thereby, (by said note,) ever promise to pay to them or to their order the sum mentioned in said complaint, or any other sum. "We cannot suppose that any one would seriously contend that such a complaint would have been held sufficient ; and yet the position of the Plaintiffs does not differ materially from that here suggested.

But, say they, we have alleged that we are now the lawful owners and holders of said note, and that the Defendants are *390indebted to ns thereon in the sum for which we have demanded judgment; and both of these allegations are admitted by the answer.

It must be remembered however that these admissions are by implication merely; and it may also be stated in answer, that in all cases of this kind, allegations-of ownership and indebtedness, unless coupled with the facts from which the ownership and indebtedness can legally be inferred, such as an indorsement or other legal transfer, are mere conclusions of law and need not be denied.

Ve are of the opinion that if the note mentioned in the complaint was not payable to the Plaintiffs, they have no light to recover, without further allegations showing facts from which title can be inferred. That the allegation as to the payee was material, and its denial formed an issue which should have been tried as provided by law.

The order of the District Court, directing judgment to be entered for the Plaintiffs on the pleadings is reversed and the case remanded for trial.