Argard v. Parker

81 Wis. 581 | Wis. | 1892

WiNsnow, J.

The plea of the statute of limitations was legally insufficient, and the objection to it should have been sustained. Conceding, as claimed by defendant, that the allegation in the complaint of part payment on the 17th of April, 1882, was not strictly essential to the cause of action, still that allegation remained, and now remains, a positive averment of fact- in the complaint to which the defendant chose to answer, and if by his answer he has admitted an essential fact in the case he can hardly now avoid his admission by the claim that the original allegation was not strictly necessary.

By well-established rules of pleading, the denial of making any payment on April 17, 1882, is a negative pregnant. It is pregnant with the admission that he did make a payment on some other day within six,years prior to the commencement of the action. Schaetzel v. Germantown F. M. Ins. Co. 22 Wis. 412. The exact time is not material. The defendant then alleges that the cause of action did not accrue within six years, bub admits that he made a payment on the note within that time, but not on the 17th day of April, 1882. This is certainly not a good plea of the statute of limitations. The only defense properly pleaded was the defense of payment. This issue has been settled by the special verdict against the defendant. No new trial is necessary.

By the Oowrt.— Judgment of the circuit court reversed, and cause remanded with directions to render judgment for plaintiff upon the verdict.