3 Minn. 126 | Minn. | 1859
By the Court
This is a question of pleading. The action is upon a promissory note for $740, payable in ninety days, with interest after maturity at three per cent, per month. The complaint admits a payment at the maturity of tiie note of $240. The Defendant answered, setting up an agreement that the note should be made payable at “ Ullman’s, on Jackson street in the city of St. Paul,” and that he had made arrangements and been ready to pay the same,' but it
The reason that in stating the facts of the case I have mentioned the first answer which was put in by the Defendant, and which was disposed of on demurrer, when the questions to be decided arise on the amended answer, is this: because, when a pleading is attacked, as this one was, for being “ evasive and uncertain,” and the Court is called upon to determine whether
"When the first answer was disposed of on demurrer, it did not thereby become annihilated and stricken from the record of the Court, but simply ceased to have the force of a good answer in the case; if the Defendant had not seen fit to file a new answer, then the complaint, the bad answer and the demurrer would have been the pleadings that would have been inserted in the Judgment Boll, and when he did file an amended answer, the first one, although superseded in its office of contributing towards the formation of the issue, still remains as a, record of the Court which may be judicially recognized when brought into question. On this motion, the allegations assailed were exceedingly loose in their expression. To say that an agreement was made “ about two weelcs prior ” to any event, is as much to say that it was made within nine or eight days of it, as to say that it was made within sixteen or twenty days of it, or any other time between one and three weeks of the event; because “ about" a given time, is as much indicative of a little less, as it is of a little greater period: therefore, it may as well be understood that this agreement set
Taking th§ whole case together, it would seem that the piayment alleged in the answer is the same mentioned in the complaint, changed in amount, and left doubtful as to time, in order to disguise its identity; but the presumption, or rather suspicion, is perhaps not strong enough to act upon. The Court erred in ordering the whole answer stricken out. It should have ordered the allegations made certain in the particulars complained of, or that they all be stricken out except that of the payment, leaving the Plaintiff to reply as he might be advised.
The order striking out the Defendant’s answer is so modified as to allow the Defendant to amend by making certain the allegations concerning the time of the making of the agreement, and the payment of the three hundred dollars under it, within ten days after service of the order to be entered upon this decision, and should he not so amend, then the answer to stand as alleging the payment of three hundred dollars on the note. The question of damages and costs will necessarily be re-heard, so they are not mentioned here. As the Plaintiff is entitled upon the pleadings to a judgment in his favor in any event, the one now entered may stand as his security until the decision of the case as it will now be presented.
The Defendant should recover ten dollars costs of this Court and his necessary disbursements.