92 Vt. 313 | Vt. | 1918
This is an action of assumpsit on contract. The case (which has been here twice before, and is reported in
Though the action was pending at the time of the passage of the Practice Act, the law of that act applies. Laws of 1915, No. 90, Sec. 18.
By section 2, pleadings in defence shall consist of “(b) An answer, which shall contain either a denial of the allegations of the complaint or some of them; or a brief and simple statement of the facts relied upon in defence.” By subdivision (c), a demurrer may be filed, which shall distinctly specify the reason why the pleading demurred to is insufficient. By section 3, no pleading shall fail for want of form, but shall be amended in such respects at any stage of the proceeding, if the fault be pointed out; and the sufficiency of all pleadings in this respect shall be for the discretionary determination of the trial court.. Subdivision (d) provides for such further pleadings as may be required, etc.; but this has reference to pleadings subsequent to the answer.
It is very apparent that, in contemplation of the act, the answer shall, in the manner stated, contain all the defences relied upon. This is in accordance with the general rule governing pleadings under reform-procedure acts, where, as here, the primary object of the Practice Act is to simplify and improve practice and procedure, in civil actions. The answer, as in equity pleadings, should be drawn in a way stating all grounds of defence upon which the defendant relies. In doing this, the answer may properly be divided into separate paragraphs, thus distinguishing the different grounds, but this it not essential; for all may be stated in one paragraph. Greenthal v. Lincoln, 67 Conn. 372, 35 Atl. 266; Freeman’s Appeal, 71 Conn. 708, 43 Atl. 185. A limitation of the rule is, that the answer cannot contain inconsistent defences. But defences are inconsistent only when they cannot both be true, and the proof of one necessarily proves the falsity of the other. McKinstry v. Collins, 74 Vt. 147, 52 Atl. 438; Susznik v. Alger Logging Co., 76 Oregon 189, 147 Pac. 922, Ann. Cas. 1917 C, 700. If the answer sets forth inconsistent defences, advantage thereof should be taken by motion to strike out, or perhaps by moving that the defendant be directed to elect upon which of the inconsistent defences he will rely.
The paragraph of the answer demurred to sets forth, as one ground of defence, that on or about the day named the Somerset Land Company promised to pay the plaintiff a two and one-half per cent, commission if certain lands were sold to Finch-Pruyn & Company of Glen Falls, N. Y., for the sum of $1,000,000, that neither said lands nor the timber growing thereon, nor any part thereof, was then or ever sold to said Finch-Pruyn & Company, that no other or different contract existed between said plaintiff and said defendants or either of them. It is said that this part of the answer amounts to the general issue. We think it does, because it is equivalent to a denial of the making of the contract alleged in the complaint; and in making such denial it was proper for the defendants to state the facts as explanatory of their denials, thus making the denial more fairly to meet the substance of the allegations denied. Thereby the plaintiff was more fully apprised of the real issue raised by the denial. The demurrer was properly overruled. Wilmot v. McPadden, 78 Conn. 276, 61 Atl. 1069; British American Ins. Co. v. Wilson, 77 Conn. 559, 60 Atl. 293, A demurrer to part of the answer (as in this case) cannot be sustained unless the part demurred to, as a whole, shows no defence.
Whether by the revision of 1917, of the statutes, the Practice Act was materially altered in any of its provisions discussed above, is not considered.
Judgment affirmed and cause remanded.
