Adams v. Trigg

37 Mo. 141 | Mo. | 1866

WagniiB, Judge,

delivered the opinion of the court.

This was an action brought by the plaintiff, as administrator, to recover of the defendant certain Missouri bank bills and United States treasury notes alleged to have-been specially deposited with him by the plaintiff’s intestate.

Defendant in his answer denied that any such deposit was made by plaintiff’s intestate ; but admitted that the plaintiff in his own name made two special deposits with him. He then stated as a defence that the said deposits were delivered back to the plaintiff, or if any part was not so delivered, the same was lost without the fault or negligence of the defendant, and that he was ignorant whether it was the one fact or the other. Plaintiff then filed his motion to strike out the answer, because it set up inconsistent defences, and was multifarious ; which motion was by the court overruled. On a trial before a jury the defendant had a verdict in his favor, on which a judgment was rendered by the court, and the case comes here on writ of error.

Under our present system of practice art answer may contain several different defences, but they must be consistent defences and separately stated.

The court erred in overruling plaintiff’s motion to strike out defendant’s answer, except that portion embodied in the first paragraph. The only material issue tendered in the case was in regard to the deposit alleged to have been made by the plaintiff’s intestate ; the other matter set up was immaterial, irrelevant, and not pertinent. It had relation to a different party, and went to establish a matter which was not a triable issue. The substantive averment in the petition was the fact .of the alleged deposit by the plaintiff’s intestate, and the denial of that fact in the answer presented the only question for trial or adjudication by the court. A party will not be permitted to positively deny the material allegations set forth in the petition, and in the same answer allege other defences wholly and directly inconsistent. He cannot interpose a denial,, and then avail himself of a confession and avoidance.

The judgment is reversed and the cause remanded;

the other judges concur.