93 Mo. App. 292 | Mo. Ct. App. | 1902
— This suit was begun in the circuit court of Barry county and taken to the circuit court of Jasper county, where it was tried at the March term, 1897, when the judgment was for the defendants, from which the plaintiff appealed to the Supreme Court, which court has certified the case to this court, because the amount, since said appeal, of the jurisdiction of this court has been increased to $4,500, the amount here involved being only $3,395.59.
The plaintiff sues on an account for said sum of $3,-395.59, which is alleged to be due from the defendants to the plaintiff. The defendants’ answer consists of a general denial, and certain other allegations, wherein it is claimed that the debt in question has been discharged by the substitution of another payee in the place of the defendants, and that the defendants have been released by reason of certain other transactions of plaintiff in relation to the debt. This answer, when reference is made to plaintiff’s account, in every instance denominates it “the alleged debt” of plaintiff. 'To' the answer plaintiff filed a reply denying the allegations of the defendants’ answer.
The plaintiff contends that it was entitled to judgment, as the answer did not state a defense to plaintiff’s cause of action. The defendants claim that the answer does state a good defense, and .ask that the judgment be affirmed. Neither side submit any ai’gument or authorities to support their respective positions. The issue is one of law arising on the pleadings. The answer being a general dexxial, and also in the nature of a plea of confession and avoidance, the questioxx is to be determined by the rules of pleading.
We know of no rule of pleading which permits a party litigant to deny his adversary’s allegations, and at the saxne time to coxxfess and avoid them. At common law the rule reqxxired the pleader to admit his adversary’s cause of action and then to allege xnatters by way of avoidance. Stephen’s Pleading, p. 90. There is no question but what the answer is in violation of the commoxx-law rules of pleading, but is also at variance with our code regulating the subject. Our courts, in passing on the question, have held such pleas to be defective. “A party can not traverse and at the same time confess and avoid the same allegation.” Coble v. McDaniel, 33 Mo. 363; Darrett v. Donnelly, 38 Mo. 492; Adams v. Trigg, 37 Mo. 141; Atteberry v. Powell, 29 Mo. 429. In short, such a plea is subject to the objection of being inconsistent with itself, and also the charge of duplicity.
As the case will have to be heard anew, we have not considered the question of whether or not under the defendants’ answer the plaintiff would have been entitled to the amount of its claim, for the reason that we differ somewhat with the St. Louis Court of Appeals, in that part of said decision, which confines the right of the party litigant to a judgment against his opponent for only so much as the answer “in terms admit the value or damages which plaintiff claims” for the reason that the better rule would be for so much as the answer admits whether in terms or substantially by proper construction. We can see no good reason for making a distinction where a thing is admitted in so many words, or an admission
The cause is reversed and remanded.