1 P. 339 | Idaho | 1881
This action was brought by the plaintiff against the defendant, in the district court, upon two joint and several promissory notes, alleged to have been executed by the defendant and one Michael Ruddy, deceased. Each of said notes are for the sum of $2,646.38, both dated March 7, 1872 — one due October 15, 1872; the other, October 15, 1873. Also upon an account for $303.34. Upon the first-mentioned note is credited $1,554.13, January 15, 1873. The defendant’s amended answer consists of ten subdivisions, each of which was, no doubt, intended as a complete or partial defense to the said several causes of action, or to some one or more of them. Such proceedings were had in the district court as resulted in the striking out of the seventh and ninth subdivisions of the answer. The plaintiff demurred in the court below to the amended answer, alleging as objections that the second and third subdivisions are inconsistent with the tenth, and that the sixth and eighth paragraphs are inconsistent with each other; and also specially demurred to the tenth paragraph, on the ground that it constitutes no defense to the action. The district court overruled the demurrer, and the plaintiff excepted to that ruling. The cause being tried by a jury, a verdict was rendered for the defendant, whereupon a judgment was rendered against the plaintiff for costs. From that judgment the plaintiff appealed to this court. Much of the matter contained in the transcript was stricken out on motion, because it constitutes no part of the record, not being made such either by the statute, or by bill of exceptions or statement.
The ease as it now stands is to be reviewed upon the judgment-roll alone, which consists of the complaint, amended answer, the demurrer to the answer, and the decision of the, court thereon, and the exception of the plaintiff thereto, the verdict, and the judgment.
The plaintiff and appellant claims that he is entitled to a reversal of the judgment of the district court on the ground that the amended answer does not set forth a defense to any of the causes of action alleged in the complaint. This brings us to
We now proceed to an examination of the written demurrer interposed in the district court, and to review the decision of that court thereon. The first two subdivisions of the demurrer will be considered together. The language of the demurrer is that several defenses have been improperly united, but the objection urged on the argument is that the second and third paragraphs of the answer are inconsistent with the tenth, and that the sixth and eighth paragraphs are contradictory and inconsistent with each other. And the specifications of the particulars, as contained in the demurrer, clearly show that the real grounds of the objection are based upon an alleged inconsistency between the specified portions of the answer, and not upon an improper joinder of defenses. An objection that a pleading contains inconsistent allegations or denials cannot be made by demurrer. The grounds upon which a party may demur are specified and enumerated in the statute, and he must be limited to the statutory grounds. That a pleading contains inconsistent • allegations or defenses is not one of these grounds. When this objection exists it should be taken advantage of by motion to strike out, or to require the party pleading to elect between them. The first and second subdivisions of the demurrer were therefore properly overruled.
The third subdivision of the demurrer is directed to the tenth paragraph of the answer. It is in effect an objection that that paragraph does not contain facts sufficient to constitute a de
This portion of the answer is clearly intended to show illegality in, or failure of, consideration, either in part or in whole, for the promissory notes alleged to have been made by the defendant and his deceased father, Michael Ruddy, in his lifetime, and fraud on the part of the plaintiff in procuring the execution of the notes by the said Michael Ruddy; but it is wholly insufficient for either purpose. The sale of improvements upon the public lands of the United States is not prohibited by any law, neither is it against sound morals, public policy, or public inter
It is apparent that an entire want of consideration is not relied upon as a defense, because it is admitted by defendant that the land and improvements sold were worth the sum of $1,600. The defendant does not say that his father did not get all the property for which the notes were given, but, in effect, that it was not worth the price agreed to be given therefor. • This is merely alleging inadequacy, not failure, of consideration. This is no defense, unless there was also fraud on the part of the plaintiff in inducing the purchaser to believe it to be of greater value, which we shall presently consider. It is not the duty of courts to relieve parties from the obligations of their contracts, fairly made, because they are disadvantageous or foolish, but to enforce them. Courts, both of law and of equity, refuse to disturb contracts on grounds o'f mere inadequacy, whether the consideration is of benefit to the promisor or of injury to the prom-isee. (1 Parsons on Contracts, 436.)
It is alleged in this portion of the answer, it is true, that the plaintiff was not the owner of more than one-half of the improvements sold to Michael Ruddy, but that one James Pierson was the owner of at least one-half thereof; but it is a sufficient answer to this allegation that it nowhere appears that said Michael Buddy in his lifetime, or his heirs or representatives, have ever been disturbed in their possession of the property, or that Pierson has ever asserted any rights thereto; but even if he-had done so, and the purchaser had been actually evicted from a portion of the premises and improvements, he could not avoid payment of the notes wifhout first surrendering or offering to surrender the remainder to the plaintiff, so that both parties might be remitted to their original rights.
Upon the question of mental incapacity of Michael Buddy to make the notes, it is sufficient to say that this constitutes no defense in favor of this defendant. The contract of an insane person is voidable only, not absolutely void. (2 Blackstone’s Commentaries, 291; 2 Kent’s Commentaries, 6th ed., 451.) The right to avoid it is a personal right, which can only be exercised by the insane person, or his guardian or representatives. The
This subdivision of the answer does not contain facts sufficient to constitute any defense to the notes, and the demurrer thereto ought to have been sustained by the district court, and for that reason the judgment must be reversed and the cause remanded.