Benicia Agricultural Works v. Creighton & Quivey

21 Or. 495 | Or. | 1892

Lead Opinion

StrahaN, C. J.

The notice of appeal contains numerous assignments of error upon which the appellants intended to rely upon this appeal, but the condition of this record renders a particular examination of them unnecessary.

The plea of a full settlement and payment of the amount found due the plaintiff upon such settlement is not denied by the reply, and must therefore, for the purposes of this action, be taken as true. (Adams v. Tuley, Ind. 27 N. E. Rep. 991; Babcock v. Farmers' and Drovers' Bank, 46 Kan. 548.) Section 72, Hill’s Code, defines what the answer of the defendant shall contain. Subdivision 1 of the section requires a specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. The second subdivision of the section requiies the answer to contain a statement of any new matter constituting a defense or counter-claim, in ordinary and concise language without repetition. Section 78 authorizes the defendant to set forth by answer as many defenses and counter-claims as he may have. Section 76 provides that when the answer contains new matter constituting a defense or counter-claim, the plaintiff may reply to such new matter, denying specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief; and he may allege in ordinary and concise language, without repetition, *500any new matter not inconsistent with, the complaint, constituting a defense to such new matter in the answer. Section 78 provides, if the answer contain a statement of new matter, constituting a defense or counter-claim, and the plaintiff fail to reply or demur thereto, within the time prescribed by law, the defendant may move the court for such judgment as he is entitled to on the pleadings, and if the case require it, he may have a jury called to assess the damages; and section 266 of the code authorizes a motion for judgment, notwithstanding the verdict, when the court has not jurisdiction of the subject of the action or the person of the defendant, or that the facts stated in the pleadings of the plaintiff or defendant, as the case may be, do not constitute a cause of action or defense thereto, and that such objection has not been taken by demurrer or answer. Taking this entire record together, it does not appear that any cause of action existed in favor of the plaintiff and against the defendants at the time of the trial.

It is alleged in the answer, and not denied by the reply, that on the twenty-sixth day of September, 1889, the parties came to a full settlement and accounting of all matters relating to the sale of said goods, wares, and merchandise by the plaintiff to the defendants; and that upon said settlement there was found due and owing from the defendants to the plaintiff the sum of fifty-five dollars. This settlement merged the plaintiff’s cause of action into the new contract thereby made, which'was the sole measure and extent of the defendants’ liability to the plaintiff on account of the goods, wares, and merchandise mentioned in the complaint; and when the amount found due upon such settlement was paid, all liability of the defendants to the plaintiff on account of said matters was fully discharged and ended. At any time after the reply was filed, and these material matters left undenied, the defendants were entitled, on motion, to a judgment in their favor for their costs and disbursements. It is not perceived that their right thereto *501was in any manner affected by a failure to make the motion until after the verdict.

This result requires a reversal of the judgment with directions to overrule the plaintiff’s motion for judgment on the verdict and to sustain the defendants’ motion for judgment nothstanding the verdict.





Rehearing

[Piled March 7, 1892.]

ON Rehearing.

Per Curiam.

After the time for presenting a petition for rehearing had expired, respondent’s counsel filed a motion and affidavit, calling the attention of the court to the fact that among the journal entries in the record is one to the effect that all that part of the amended answer in relation to a settlement is stricken out; but there is no motion on file asking the court to make such order, nor is that part of the answer marked in any way so as to show that the same was stricken out or intended to be. There is a motion on file to strike the whole answer from the files, and that is the only motion directed against the answer.

It may be well doubted whether the court has the power to order matter to be stricken from a pleading after it has been filed, without a motion specifying the same, where the same is respectful in its language; but we do not find it necessary to enter upon that question. The plea of payment is contained in two parts of the answer, — a case of redundancy, — but neither is denied. There is no attempt to deny the one pleaded in connection with the' fact of settlement, and the attempted denial of the other is in such form as to amount to an admission of the truth of the plea under the rules of pleading prevailing in this state. The authorities cited from California and elsewhere on this subject are inapplicable here, or at least the principle they announce has never been adopted in this state. A plea of payment in the answer is new matter, and must be denied or it stands admitted. The plaintiff cannot, by alleging in his complaint that no payments have been made, antici*502pate this defense, and thus relieve himself from the necessity of replying to it, when it appears in the answer. Though this application is out of time and irregular, we have thought proper to say this much to show that the result would have been the same had it been regularly filed.

We find no cause to change the judgment already rendered.